2. The Defendant’s disposition rejecting a report on extension of the retention period of a temporary building against the Plaintiffs on September 30, 2013, and revocation of the disposition imposing enforcement fines of KRW 16,111,870 against Plaintiff 1 on October 1, 2013, and KRW 274,461,260 against Plaintiff 2.

3. All costs of the lawsuit shall be borne by the defendant.

The court's explanation on this part is the same as the corresponding part of the reasoning of the judgment of the court of first instance. Thus, this part of the judgment is accepted by Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2. The plaintiffs' assertion

A. Illegality of the instant return disposition

Unlike the case of reporting the construction of a temporary building, the Plaintiffs asserted that the instant disposition was unlawful on the ground that there is no consent to the use of the site at the time of the extension of the retention period, and that there is no ground to interpret that the consent to the use of the site is necessary at the time of the extension of retention period, and ② that the construction and retention of each of the instant temporary buildings on the ground of the instant land constitutes the act of management of jointly owned properties. As such, the Plaintiffs obtained consent to the use of the site from Samsung C&T Co., Ltd., the legitimate right holder of the instant land, or obtained the possession of the temporary building constructed by Samsung C&T Co., Ltd., the Plaintiff obtained consent

B. The illegality of each disposition of this case following each removal order of this case

In addition, the plaintiffs also assume that the disposition of return of this case and the disposition of imposing charges for compelling compliance of this case are legitimate, but each of the orders of this case on the grounds that the defects are serious and clear, and even if the defect is not null and void per annum, it is improper that it was succeeded to the disposition of this case and the disposition of imposing charges for compelling compliance of this case, or granting binding force to each of the orders of this case goes beyond the plaintiffs' tolerance limit. Further, even if each of the orders of this case is valid, the disposition of this case and the disposition of imposing charges for compelling compliance of this case are based on the premise that each of the orders of this case remain effective, and the plaintiffs' disposition of this case and the disposition of imposing charges for compelling compliance of each of the orders of this case are based on the premise that each of the orders of this case are valid with the consent of the d d d d d d r fr tbb for the second application of this case on August 30, 2013.

(c) deviation from and abuse of discretionary authority;

Furthermore, even if each of the instant orders is lawful, the Plaintiffs and Samsung C&T consortium did not receive the construction cost due to the suspension of the instant purification work, and the Korea Railroad Corporation seriously contaminated the instant land. It is unreasonable to remove each of the instant temporary buildings because they did not consent to the extension of the retention period of each of the instant temporary buildings even though they did not properly pay the project funds and the instant purification work cost. Each of the instant temporary buildings is an essential facility for the instant purification work, and if each of the instant temporary buildings is demolished because the said purification work has not yet been completed, the Korea Railroad Corporation must re-establish the instant temporary building for the instant purification work. This is socially and economically enormous loss, and the Plaintiffs were to build each of the instant temporary buildings, which were installed in the area of KRW 40 billion, but were not paid the construction cost. In light of the fact that each of the instant temporary buildings was installed in the area of KRW 40 billion, it cannot be said that the removal would be more likely to cause any loss, and that each of the instant construction would interfere with or threaten the general public’s safety of traffic and landscape, etc.

3. Related Acts and subordinate statutes and judgment on the defendant's main safety defense

The reasoning for this Court's explanation is as follows: Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act, except for the addition of Article 15 (7) to Article 15 (9) of the Enforcement Decree of the Building Act as stated in the attached Table related Acts and subordinate statutes, and therefore, this Court's explanation is justified.

▣ 건축법시행령

Article 15 (Temporary Buildings)

(7) The retention period of a temporary building subject to a report in accordance with Article 20 (3) of the Act shall not exceed three years: Provided, That in cases of a temporary building and structure for construction works under paragraph (5) 3, it means the period until the date the relevant work is completed.

(8) A person who intends to build a temporary building subject to reporting pursuant to Article 20 (3) of the Act shall submit a report on construction of a temporary building prescribed by Ordinance of the Ministry of Land, Infrastructure and Transport, along with relevant documents, to the Special Self-Governing City Mayor, the Special Self-Governing Province Governor, or the head of a Si/Gun/Gu: Provided, That where he/she submits matters concerning the construction

(9) Upon receipt of a construction report on a temporary building under paragraph (8), the Special Self-Governing City Mayor, the Special Self-Governing Province Governor, or the head of a Si/Gun/Gu shall verify the details thereof and issue a report to

4. Determination on the legitimacy of each of the dispositions of this case

A. Judgment on the disposition on the return of this case

1) Whether approval for use by a site owner is necessary for extension of the retention period of a temporary building

A) The issue is raised

The reason why the Defendant rejected the Plaintiffs’ report on the extension of the retention period for each of the instant temporary buildings is that there is no consent of all the site owners. As such, even if the retention period is extended legally constructed temporary structures, it is a matter of whether the consent of the site owner is essential for the acceptance of the report, and thus, it should be examined first.

B) Relevant legal principles

Article 20(2) of the Building Act provides that the Mayor, etc. shall file a report in order to build a temporary building for the purposes prescribed by Presidential Decree, and Article 15(5) of the Enforcement Decree of the Building Act lists a temporary building subject to reporting under each subparagraph. In principle, a temporary building is not a building under the Building Act, and it can be constructed without a building permit or a building report, but it is necessary to control a certain temporary building equivalent to that of a building (see Supreme Court Decision 2010Du9334, Sept. 9, 201).

Furthermore, Article 13(1) of the Enforcement Rule of the Building Act (hereinafter “Enforcement Rule”) provides that a person who intends to build a temporary building subject to a report pursuant to Article 20(2) of the Building Act (hereinafter “the Act”) shall submit a written report on the construction of a temporary building in attached Form 8 to the Governor of a Special Self-Governing Province or the head of a Si/Gun/Gu (hereinafter “the head of a Si, etc.”) pursuant to Article 15(8) of the Enforcement Decree of the Building Act (hereinafter “Enforcement Rule”). Article 13(5) of the Enforcement Rule provides that a person who intends to extend the retention period of a temporary building pursuant to Article 15(7) of the Enforcement Rule of the Building Act shall submit a written report on the extension of the retention period of a temporary building to the Mayor, etc.; Article 13(6) of the Enforcement Rule provides that a person who has filed a report on the extension of the retention period under the provisions of paragraph (5) of the Building Act shall promptly determine the extension period of a temporary building after checking the details therein.

C) Determination

In light of the above legal principles, the following circumstances revealed the above facts, namely, ① Article 13(1) of the Enforcement Rule provides that when a temporary building is constructed on another person’s site, the consent to use the site shall be attached to the building owner’s “building,” and does not require the owner to attach a written consent to use the site until the extension of the retention period of the existing temporary building. ② There is a decision on whether to grant an application for the extension of the retention period of the temporary building, as seen earlier, there is a need to consider the consent to use the site that is not specified in the relevant provision as an essential requirement for the above extension as an excessive restriction beyond the legal regulation. ③ The consent to use the site attached at the time of the report on the construction of the temporary building is recognized by the landowner’s own, and there is room to view that the consent to use the site is within the scope of the original administrative regulation on the building owner’s own. However, in the case of an application for the extension of the retention period, it is difficult to consider the need to maintain the land’s right to use the building rather than the original administrative regulation.

However, it is derived from the need to control the risk corresponding to a building at the time of permitting the construction of a certain temporary building by taking the requirements for the consent of the owner of the building at the time of allowing the construction of the building, and the necessity of such administrative regulation is also closely related to examining the grounds for the extension of the period. Therefore, in determining whether to accept the report of the extension of the retention period for the temporary building, the intention of the owner of the building can still be considered.

2) Determination on the deviation and abuse of discretionary power

6. In light of the above facts and the overall purport of oral argument, it is difficult for the Korea Railroad Corporation to take advantage of the following circumstances, i.e., the extension of the retention period of the above temporary building, i., the owner’s consent to the use of the land. Thus, it cannot be deemed that there is no consent to the second application for extension of the building site. ii) Since the current state of the building has already been changed after obtaining lawful construction report, there is no reason to refuse the extension of the retention period, unless there is any danger due to the retention of the temporary building. iii) The Korea Railroad Corporation without the consent to the use of the land at the time of the second application for the extension of the purification period is the party which seriously contaminated the land, and thus it is difficult for the Korea Railroad Corporation to take out the construction project of this case without the consent to the extension of the retention period, i.e., the removal of each temporary building without the consent to the removal of each of the land of this case.

B. Determination as to each removal order of this case and imposition disposition of each enforcement fine of this case

1) Determination as to each removal order of this case

A) First of all, it is insufficient to examine whether the removal order of this case is invalid or not, and the fact that there is an illegal cause in order to make the removal order of this case null and void abrupt, and it should be objectively obvious that there is a serious violation of the important part of the law. The determination of the material and clear confession of defects requires a theoretical examination of the purpose, meaning, function, etc. of the law as well as a reasonable examination of the specificity of the specific case itself (see Supreme Court en banc Decision 94Nu4615 delivered on July 11, 1995, Supreme Court Decision 2003Du2403 delivered on November 26, 2004, etc.). As seen earlier, each of the instant removal order of this case should be revoked as an illegal disposition deviating from or abusing the discretionary power, and each of the instant removal order of this case has expired until the second extension application of the disposition of this case is accepted, and therefore, it is clear that each of the instant removal order of this case is unlawful.

B) However, as seen earlier, the third removal order of this case was issued after the second removal order of this case, and the third removal order of this case should be revoked as an illegal disposition. If the second removal order of this case is revoked and the second removal application of this case is accepted, each temporary building of this case constitutes a legitimate building due to the extension of its retention period. Accordingly, the third removal order of this case is valid and based on this premise that each temporary building of this case is illegal. Meanwhile, the third removal order of this case and the third removal order of this case, the third removal order of this case, which is based on the premise that each temporary building of this case is illegal. Meanwhile, the third removal order of this case, as well as the third removal order of this case, are the last removal order and the second removal order of this case, which were issued after the second removal order of this case, prior to the imposition disposition of enforcement fines of this case, and the third removal order of this case is unlawful, and the third removal order of this case cannot maintain its effect independently. Accordingly, each of the above removal orders of this case is unlawful.

2) Determination on imposition of enforcement fines of this case

A) Nature of enforcement fines

Enforcement fine is an administrative indirect compulsory execution means to impose a certain monetary burden upon a person who fails to perform his/her duty of omission or non-alternative action under the Administrative Law in order to compel him/her to perform his/her duty by a given time limit, and to impose a psychological pressure upon him/her to cause him/her to perform his/her duty in the future.

B) Whether the order to remove the prior disposition is legitimate

Where two or more administrative dispositions continue, when the purpose of the preceding and subsequent dispositions is to make separate legal effects independently, the validity of the preceding dispositions cannot be asserted on the ground of the defect in the preceding dispositions, except where the defect in the preceding dispositions is grave and obvious, and the invalidity of the latter is null and void. However, even where the preceding dispositions and subsequent dispositions are aimed at achieving separate effects independently, the non-existence of the preceding dispositions and the binding force of the preceding dispositions may bring about harsh disadvantages to those who are disadvantaged thereby, and if the result is not predicted to the parties, the binding force of the subsequent dispositions cannot be acknowledged in light of the constitutional ideology guaranteeing the right to trial of the people (see, e.g., Supreme Court Decisions 93Nu8542, Jan. 25, 1994; 2012Du6964, Mar. 14, 2013).

On the other hand, the plaintiffs filed a revocation suit to dispute the illegality of each of the orders of removal of this case, and the respective orders of removal of this case do not fall under the invalidation as seen earlier. As such, each of the orders of removal of this case may no longer dispute and the illegality thereof may be asserted independently, and the disposition imposing enforcement fines is scheduled as a follow-up procedure as to each of the orders of removal, and these facts are also notified to the plaintiffs along with the order of removal. Thus, the disposition imposing enforcement fines cannot be deemed as unforeseeable to the plaintiffs. Thus, there is room to view that the illegality of the order of removal of this case can no longer be asserted while disputing the illegality of the order of removal of this case.

However, it is difficult to view that the disposition imposing enforcement fines is aimed at separate legal effects from the removal order, and it also seems to have the nature of administrative enforcement measures to compel the performance of the removal obligation under the removal order, as well as some sanctions against past violations of administrative obligations. Therefore, in a case where the illegality of administrative punishment is disputed, even if there is no dispute over the disposition which is the basis thereof, it is possible to seek cancellation of administrative punishment on the ground of illegality of the disposition, and in a case where there is an illegal cause in the removal order which is the premise of imposing enforcement fines, it is reasonable to consider that the disposition imposing enforcement fines can seek cancellation of the disposition imposing enforcement fines on the ground of illegality of the removal order which has already occurred due to the lack of dispute).

C) Sub-decision

Therefore, in the instant case where the illegality of the imposition of each of the instant enforcement fines is disputed, each of the instant enforcement fines can be sought for revocation of the imposition of each of the instant enforcement fines on the grounds of illegality of each of the instant removal orders, and as seen earlier, each of the instant removal orders is unlawful, and thus, the imposition of each of the enforcement fines of this case to enforce the illegal removal order

3. Conclusion

Therefore, the plaintiffs' claim of this case is justified, and the judgment of the court of first instance is unfair, and it is so decided as per Disposition by the decision of the court of first instance.

[Attachment]

Judges Lee Jong-hun (Presiding Judge) (Presiding Judge)

Note 1) As shown in the separate sheet.

2) On November 30, 2009, the Korea Railroad Corporation sold the instant land to Dlimb as a special agreement for repurchase, and completed the registration of ownership transfer on April 25, 2013, but upon the termination of a partial trust agreement between Dlimb and Korea Land Trust Co., Ltd. on April 25, 2013, the Korea Railroad Corporation completed the registration of ownership transfer on shares of the instant land due to the attribution of trust property.

3) The fairness of an administrative act is not a presumption of legality, but merely a common use of the validity of the administrative act. Therefore, even if a disposition is not revoked through a revocation suit, it is reasonable to view that the court can independently determine the illegality of the disposition in criminal proceedings and administrative fines.

4) On such premise, the Supreme Court also held that in a lawsuit seeking revocation of a disposition imposing enforcement fines on the ground that the repair of a building constitutes a large-scale repair, the said corrective order and disposition imposing enforcement fines are unlawful on the ground that the said repair does not constitute a large-scale repair under the Building Act (see, e.g., Supreme Court Decisions 2007Du25336, Mar. 27, 2008; 2010Du23316, Mar. 10, 201).