[2] The method of applying Article 41-2(1) [Attachment 5] subparagraph 3(a) of the former Enforcement Decree of the Act on Special Measures for Designation and Management of Development Restriction Zones in case where a violator fails to comply with a corrective order for a series of changes in the form and quality over a lot of land adjacent to a lot

1. Regarding ground of appeal No. 2

A. According to Article 30(1) of the former Act on Special Measures for Designation and Management of Development Restriction Zones (amended by Act No. 12956, Dec. 31, 2014; hereinafter “Restriction on Development Restriction Zones Act”), the head of a Si/Gun/Gu may issue a corrective order, such as removal of buildings, structures, and land, necessary measures, etc. to the relevant offender (including owners, managers, or occupants of buildings, structures, and land used for the relevant offense; hereinafter “offenders, etc.”) who conducts an act, such as construction of a building, alteration of the form and quality of land, without permission under this Act, within a reasonable period of time. In addition, according to Article 30-2 of the Restriction on Development Restriction Zones Act, the head of a Si/Gun/Gu shall repeatedly impose a non-performance penalty within the scope of KRW 100 million on a person who fails to comply with the corrective order within the period of correction (paragraph (1)); however, if he/she is subject to a new corrective order within the scope of 100 years prior to impose the non-performance penalty (hereinafter.).

In full view of the contents, structure, and purport of the relevant statutes, the enforcement fine under the Development Restriction Zone Act is not a sanction against the past violations, such as non-performance of a corrective order, but an indirect means of administrative compulsory enforcement that indirectly forces the performance of the obligation in accordance with the corrective order by granting considerable compliance period to the violator, who fails to comply with the corrective order, and notifying the fact that the enforcement fine is imposed if the corrective order is not complied with within the given period (see Supreme Court Decision 2015Du46598, Jul. 14, 2016).

B. Meanwhile, Article 41-2(1) [Attachment 5] of the former Enforcement Decree of the Act on Special Measures for Designation and Management of Development Restriction Zones (amended by Presidential Decree No. 28180, Jul. 11, 2017) upon delegation of Article 30-2(9) of the Development Restriction Zones Act provides that “violation of permitted matters” under Article 41-2(1) [Attachment 5] of the former Enforcement Decree of the Act on Special Measures for Designation and Management of Development Restriction Zones (amended by Presidential Decree No. 28180, Jul. 11, 2017) shall be determined for calculating the amount of a non-performance penalty by type of each offense. The item (d) provides that “the form and quality change of land” among the types of offense “the publicly notified land 】 area 】 30/100” shall be determined as “the amount of a non-performance penalty imposed and collected when the amount is less than 50,000 won as a result of calculating the non-performance

In full view of the above provisions and the contents and purport of the above relevant provisions, the maximum amount of enforcement fines related to changing the form and quality of land cannot be deemed as applicable to each violation of the Development Restriction Zone Act, regardless of the corrective order, and, in principle, the non-performance of the individual corrective order should be applied

Furthermore, according to the language and text and purport of the Act on the Imposition of Charges for Compelling the type and quality of a violation, which prescribes that the amount of charges for compelling compliance shall be calculated by taking into account the individual individual land price and the “area of violation” as to the form and quality of land related to the land, it can be seen that the amount of charges for compelling compliance is calculated by violating the corrective order based on specific acts, such as the type and area of each violation. In light of such premise, in a case where a series of changes in form and quality over several lots of land linked thereto was issued, but the violator failed to comply therewith, the provision on the amount of charges for compelling compliance should not be applied individually on the basis of each parcel which becomes subject to a series of changes in form and quality, and the provision on the amount of charges for compelling compliance should be applied individually to the aggregate of the amounts calculated by multiplying each individual individual land price by the area of the

2. A. The reasoning of the lower judgment reveals the following facts.

1) On March 10, 2015, the Defendant issued a corrective order ordering the Plaintiff to restore each of the instant land No. 2 through 4 (hereinafter “instant land”) on March 11, 2015, with respect to the land No. 1 List No. 1 as indicated in the lower judgment (hereinafter “instant land”) on the ground that each of the instant land was changed without permission, to the original state.

2) On September 5, 2016, the Plaintiff did not comply with each of the above corrective orders, and the Defendant imposed a non-performance penalty of KRW 43,461,00 on the instant land 1 through 3, respectively, and KRW 32,344,00 on the instant land 4.

3) The instant land 2 to 4 is adjacent to each other and used as a single parking lot. The instant land is considerably far away from the instant land 2 to 4, and is used as a separate parking lot.

B. Examining these facts in light of the legal principles as seen earlier, the maximum amount of enforcement fines shall be applied respectively to each violation of the corrective order on the land of this case and the corrective order on the land of this case 2 through 4. Therefore, the disposition of enforcement fines on the land of this case is legitimate, but the disposition of enforcement fines on the land of this case 1 is unlawful since the disposition of enforcement fines on the land of this case 2 through

Furthermore, the Defendant imposed enforcement fines on each land of this case 2 through 4, respectively, and the aggregate amount of enforcement fines exceeds the maximum amount. As such, the lower court should have revoked all of them through the procedure, such as clarifying the purport of the claim and made it possible for an administrative agency to take one disposition to which the provision of enforcement fines is applied.

C. Nevertheless, the lower court determined that the part exceeding KRW 50,00,000 is unlawful on the premise that the provision on the charge for compelling compliance applies to each of the offenses in violation of the Development Restriction Zone Act or each of the offenses, on the premise that the Plaintiff’s form and quality alteration is a single violation, and that the above provision on the total amount of KRW 162,727,00 for each of the instant charges for compelling compliance is applicable. In so doing, the lower court erred

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices

Justices Cho Jae-chul (Presiding Justice)