[건축법위반으로인한과태료처분무효확인][공2000.11.15.(118),2227]
Whether a disposition imposing a non-performance penalty under Article 83 of the Building Act is an administrative disposition subject to administrative litigation (negative)
According to Article 82(3) and (4) and Article 83(6) of the Building Act, a person dissatisfied with the disposition imposing a non-performance penalty under Article 83 of the same Act may raise an objection to the imposing authority within 30 days from the date of receiving the notice of such disposition, and the imposing authority so notified shall notify the competent court of such fact without delay, and the competent court so notified shall render a trial pursuant to the Non-Contentious Case Litigation Procedure Act. The legitimacy of the disposition imposing a non-performance penalty under Article 83 of the Building Act shall be determined only by the procedure under the Non-Contentious Case Litigation Procedure Act. Thus, the disposition imposing a non-performance penalty shall not be deemed an administrative disposition subject to administrative litigation.
Article 82(3) and (4), Article 83 of the Building Act, Article 2 of the Administrative Litigation Act
Supreme Court Decision 80Nu380 delivered on October 14, 1980 (Gong1980, 1339) Supreme Court Decision 93Nu1683 delivered on November 23, 1993 (Gong1994Sang, 209) Supreme Court Decision 95Nu2623 delivered on July 28, 1995 (Gong195Ha, 3002)
[Judgment of the court below]
Nowon-gu in Seoul Special Metropolitan City
Seoul High Court Decision 99Nu14241 delivered on June 2, 2000
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
The grounds of appeal are examined.
According to Articles 82(3) and (4), and 83(6) of the Building Act, a person dissatisfied with the disposition imposing charges for compelling compliance under Article 83 of the Act may raise an objection to the imposing authority within 30 days from the date of receiving the notice of the disposition, and the imposing authority so notified shall notify the competent court without delay, and the competent court so notified shall make a trial pursuant to the Non-Contentious Case Litigation Procedure Act. According to the above provisions, the propriety of the disposition imposing charges for compelling compliance under Article 83 of the Building Act shall be determined only by the procedure under the Non-Contentious Case Litigation Procedure Act. Thus, the above disposition imposing charges for compelling compliance shall not be deemed an administrative disposition subject to administrative litigation (see, e.g., Supreme Court Decisions 93Nu1683, Nov. 23, 1993; 95Nu2623, Jul. 28, 1995).
Therefore, even if the applicable law of the disposition imposing enforcement fines against the plaintiff was invalidated by the Constitutional Court's decision of unconstitutionality as alleged by the plaintiff, it cannot seek invalidation or revocation of the above disposition by an administrative litigation, apart from the assertion of such circumstances in the trial proceedings under the Non-Contentious Case Litigation Procedure Act. In the same purport, the court below maintained the first instance court's measure which dismissed the plaintiff's lawsuit seeking a return of enforcement fines paid in accordance with each of the dispositions of this case, along with the invalidity confirmation of each of the dispositions of this case,
Therefore, the appeal is dismissed and the costs of appeal are assessed against the plaintiff who is the appellant. It is so decided as per Disposition by the assent of all participating Justices.
Justices Lee Yong-woo (Presiding Justice)