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(영문) 대구고법 1981. 10. 19. 선고 80구228 특별부판결 : 확정

[건물철거계고처분취소청구사건][고집1981(형특),469]

Main Issues

The nature of delegation of authority under ordinances based on the Local Autonomy Act

Summary of Judgment

Unlike in the case of a simple delegation or entrustment of administrative affairs, the delegation of authority under the Local Autonomy Act shall be transferred by the delegated authority to the delegated authority and the authority of the delegated authority shall be extinguished within the scope of the delegation.

[Reference Provisions]

Article 106 of the Local Autonomy Act, Article 38 of the Enforcement Decree of the Local Autonomy Act

Reference Cases

Supreme Court Decision 77Nu4 delivered on April 12, 1977 (Supreme Court Decision 11477 delivered on April 12, 197; Supreme Court Decision 25Nu35 delivered on June 25, 197; Decision 106(1)68 of the Local Autonomy Act; Court Gazette 560 delivered on April 10, 197

Plaintiff

Plaintiff 1 and one other

Defendant

Busan City Mayor

Text

The disposition taken by the defendant against the plaintiff et al. on November 14, 1980 on the removal of the above ground buildings (number 1 omitted) by 2, Jung-gu, Busan, Busan, which was made by the defendant for the plaintiff et al. shall be revoked.

Litigation costs shall be borne by the defendant.

Purport of claim

The same shall apply to the order.

Reasons

In full view of the whole purport of pleadings as to the evidence Nos. 2-1, 2 (Certificate of Building Site) and 4 (Certificate of Completion Inspection), Eul evidence Nos. 2-3, 6-1, 2, 7-1, 7-2, 3 (Report on Request for Removal, Vicarious Execution Warrant) and the whole purport of pleadings, the defendant, on Nov. 14, 1980, issued to the plaintiffs on Feb. 23, 1980, by the head of Jung-gu Office of Busan on Feb. 23, 1980, 200, 171.2, 171.87, 137, 137, 137, 47, 508, 2, 3,000 after obtaining the completion inspection from the head of the Gu on Feb. 24, 1980, 200, 1500,0000,000

Although the plaintiffs' legal representative constructed the building in excess of the permitted area in violation of the construction permission item in the building building construction, the increased site of the building is owned by the plaintiffs and its location is not likely to harm the urban landscape or harm fire, sanitation, etc., as it is the back part of the building, and rather, the construction of various garbages is stored and rainwater is likely to harm the safety of the building by leaving the open area to the open area. It is not deemed to seriously harm the public interest. Furthermore, in the event that the above building was already completed and completed and the completion inspection is removed, the defendant's disposition ordering the removal of the building in light of the risk that the above building itself might collapse, etc. is an unfair disposition that goes against the principle of equity.

Article 42 (1) 1 of the Building Act has already been enacted on the basis of the provisions of Article 42 (1) of the Building Act. On the other hand, Article 4 (2) of the Building Act provides that the head of the Seoul Special Metropolitan City and the head of the Si/Gun/Gu which has established the Busan Metropolitan City government may delegate part of the authority under this Act to the head of the Gu under the conditions as prescribed by the Presidential Decree. Article 5 (2) of the Enforcement Decree of the Building Act provides that the authority of the head of the 1st, Busan Metropolitan City, or the head of the Si/Gun/Gu to which the head of the 2nd office belongs shall be delegated to the head of the 1st office of the 1st office of the 6th office of the 1st office of the 3rd office of the 4th office of the 6th office of the 1st office of the 1st office of the 6th office of the 3rd office of the 1st office of the 1st office of the 3rd office of the 1st office of the 4th office of the 6th office.

Therefore, the defendant's order to dismiss the vicarious execution of this case against the plaintiff on November 14, 1980 cannot be made a defective disposition by an agency without authority, so the plaintiff's claim to revoke this case is justified without examining the remaining arguments, and therefore it is so accepted and the costs of lawsuit are assessed against the losing defendant. It is so decided as per Disposition.

Judges Kim Jong-ju (Presiding Judge)