[위반건축물원상복구시정명령처분][공2008하,1245]
Whether a nominal owner who only lends a name constitutes a “project owner” who is the other party to a corrective order for a non-compliant building under Article 69(1) of the former Building Act (affirmative)
In light of the relevant provisions of the Building Act, it is difficult to view that the competent administrative agency has the right to substantially examine whether the building owner is the actual owner, and even if it is not the direct cause agent for the building in violation of the Act, if it is the nominal owner's name, it is reasonable to assume liability as the nominal owner even if it is not the direct cause agent for the building in violation of the Act. If it is not deemed as such, the building owner may be abused as a means to avoid liability by asserting that he is only the nominal owner, and if it is not deemed as such, it may be abused as a means to avoid liability by asserting that the building owner is merely the nominal owner, and the relationship of the administrative law may be unclear and may act as an element to undermine legal stability, barring special circumstances such as the fraudulent use of the name, the person holding the name in violation of the Building shall be deemed as the owner in violation of Article 69 (1) of the former Building Act (amended by Act No. 89
Article 69 (1) of the former Building Act (amended by Act No. 8974 of March 21, 2008) (see current Article 79 (1))
Plaintiff
The Mayor of the Seocho-si in Gwangju City;
Seoul High Court Decision 2006Nu15891 decided Feb. 2, 2007
The judgment below is reversed, and the case is remanded to Seoul High Court.
The grounds of appeal are examined.
Article 69(1) of the former Building Act (amended by Act No. 8974 of Mar. 21, 2008; hereinafter “the Building Act”) provides that where a site or a building violates this Act or any order or disposition issued under this Act, the permitting authority may cancel permission or approval granted under this Act, order the owner, construction executor, field manager, owner, manager, or possessor of the building to suspend the construction, or to remove, rebuild, extend, repair, repair, change, prohibit the use of, or restrict the use of, the building within a reasonable time specified by the relevant provisions of the Building Act, it is difficult to view that the competent administrative agency has a substantial right to examine whether the building owner is the actual owner at the time of the building permission or the building report, and if it is nominal, even if it is not the owner by the owner's own owner, it is reasonable to assume liability as the name holder even if it is not the owner's direct cause for the building in violation of the Building Act. If it is not seen as such, the owner's name is merely the owner's name that it constitutes an unlawful act.
Therefore, on the premise that the owner who becomes the other party to the corrective order under Article 69(1) of the Building Act should be the actual owner, the court below erred in the misapprehension of legal principles as to the concept of the owner who is the other party to the corrective order of this case on the ground that the plaintiff was merely a nominal owner who borrowed only the name of the building in violation of this case.
Therefore, 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 on the bench.
Justices Kim Nung-hwan (Presiding Justice)