건축이행강제금부과처분취소
1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
1. Details of the disposition;
A. On July 30, 2014, the Plaintiff was the owner of the 2nd floor building (126.8 square meters in total floor area; hereinafter “instant building”) on the ground B of Bupyeong-gu Incheon Bupyeong-gu, Incheon. On July 30, 2014, the Plaintiff filed a large-scale repair report with the Defendant on the alteration of the roof materials from the sandbrid roof board to reinforced concrete, and without permission, extended the height of the 2nd floor from the 4.8m to 10.8m in total.
B. On April 14, 2015, the Defendant imposed a non-performance penalty on the Plaintiff on the ground that the Plaintiff violated Article 11 of the Building Act.
C. On July 22, 2016, the Defendant conducted a field investigation to verify the violation and confirmed that the Plaintiff did not correct the violation. On July 25, 2016 and August 30, 2016, the Defendant again issued a disposition imposing KRW 12,648,000 for compelling the performance (hereinafter “instant disposition”) to the Plaintiff on November 8, 2016, subject to a corrective order issued on July 25, 2016 and August 30, 2016.
[Ground of recognition] Facts without dispute, Gap evidence 1, 5, 7, Eul evidence 1 to 10 (including branch numbers), the purport of the whole pleadings
2. Whether the disposition is lawful;
A. The Plaintiff’s assertion 1) Article 14(1)1 of the Building Act provides that the case of extension of the total floor area of 85 square meters or less shall be reported. As such, although the Plaintiff extended the height of the second floor of the instant building from 4.8m to 10.8m, the violation area is merely 60m or less, and thus constitutes a violation of the reported matters under the said legal provisions, the enforcement fine shall be mitigated pursuant to Article 80(1) of the Building Act and Article 115-3(1)4 of the Enforcement Decree of the same Act. Therefore, the instant disposition made on the premise that the extension area of the instant building is subject to permission is unlawful. (2) The proviso to Article 80(1) of the Building Act imposes an amount prescribed by municipal ordinance of the relevant local government within the limit of 1/2 of the enforcement fine calculated pursuant to subparagraphs 1 and 2 on a residential building with a total floor area of 85m or less.