According to the reasoning of the judgment below, the plaintiff owned a building of 76 square meters and its ground level at the center of the Jeonju City where shopping malls is densely located. However, on July 27, 1989, in order to remove the existing 2nd floor and build a new 4th floor, the plaintiff applied for a construction permit of 168 square meters, building area of 168.6 square meters, and total floor area of 794.92 square meters to the defendant. In the process of establishing the building, the plaintiff constructed an urban planning line installed in the front of the above site and constructed a 55 square meters wideer than the permitted area, and the above extended part without permission was established as an urban planning line among the land owned by the plaintiff, but it was extremely unreasonable for the plaintiff to remove the existing 1st and second floor as well as to remove the existing 1st and second floor without any convenience to remove it from the existing 4th square meters of the road.

However, in this case where the portion of the building in this case without permission is considerably large, and it is found easily that the road is protruding entirely, and the existing urban planning line is invaded, and the establishment of the urban planning line is not deemed unreasonable as the plaintiff's assertion, the authority that controls illegal buildings should neglect the extension part of the building in this case, which is an illegal building, and if the court below acknowledged it, the power of the authority that controls illegal buildings should be circumvented and endanger the smooth execution of the construction administration, and the authority that controls illegal buildings could not prevent in advance the avoidance of the economic and efficient use of the land within the restricted provisions of the Building Act or the urban planning zone under the Building Act, and thus it would undermine the greater public interest (see Supreme Court Decision 90Nu9643 delivered on March 8, 191; Supreme Court Decision 90Nu2871 delivered on August 10, 190; 90Nu2215 delivered on June 22, 199).

Nevertheless, the court below determined that even if the upper part of the first and second floors of the building of this case is left alone without removing the upper part, it cannot be deemed that it severely damages the public interest. This is erroneous in the misapprehension of legal principles as to the requirements for the disposition of the upper part, and there is a reason to point this out.

Therefore, the judgment of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-dong (Presiding Justice) Kim Sang-ho (Presiding Justice)