이행강제금부과처분취소및무허가증축양성화청구
1. Of the instant lawsuit, the part regarding the request for the discharge of the training procedure relating to the extension without permission is dismissed.
2. The plaintiff's remainder.
1. Details of the disposition;
A. On December 31, 2018, the Plaintiff and C jointly acquire the ownership of the Gangdong-gu Seoul Metropolitan Government Ground Living Facilities and the third floor building of detached houses (hereinafter “instant building”).
B. On November 9, 2012, the Defendant discovered that a building of 81 square meters in total was extended without permission on the rooftop of the instant building (i.e., a building of 35 square meters and a 46 square meters per annum; hereinafter “the instant extension part”). At the time, the Defendant imposed the first enforcement penalty on D on January 25, 2013 following the first corrective order issued on November 13, 2012, and thereafter, imposed the enforcement penalty on D six times in total on the Plaintiff and C before acquiring ownership of the instant building.
C. On June 19, 2019, the Defendant imposed upon the Plaintiff and C a total of KRW 1,523,550 (i.e., KRW 1,094,800) for enforcement fines on the instant extension pursuant to Article 80 of the Building Act (hereinafter “instant disposition”).
[Reasons for Recognition] Unsatisfy, Gap evidence 1 to 3, Eul evidence 1 and 3, the purport of the whole pleadings
2. Of the instant lawsuit, the Defendant asserts that the part concerning the request for the performance of the training procedure related to the extension without permission is unlawful since this part of the lawsuit constitutes a lawsuit seeking performance of obligations, the Defendant’s defense to the effect that there is no legal basis for seeking the implementation of the training procedure concerning the extension of this case. Thus, the Defendant’s defense is determined to include the purport of claiming the illegality of the lawsuit claiming performance of obligations.
On the other hand, under the current Administrative Litigation Act, the so-called "performance of obligation" lawsuit that orders an administrative agency to actively engage in a certain act is not allowed (see, e.g., Supreme Court Decision 91Nu4126, Feb. 11, 192). Of the lawsuit of this case, the part of the claim for the performance of the training procedure concerning the extension of this case is that the plaintiff seeks an administrative disposition against the defendant who is an administrative agency.