According to the reasoning of the judgment below, since the plaintiff constructed a market building on the ground of 418.5 square meters in Mapo-gu, Seoul ( Address omitted) around April 1985, the 418.5 square meters above that of the 849 square meters, the back part of the market building was left public land. The above public land part is the land owned by the plaintiff and it is necessary to be used as a road or passage, and the space between the market building and the front and the side of the building can be used as a parking lot, and the above public land part and its surrounding area are used as a street store. Thus, the plaintiff is not allowed to maintain the division of commercial activities on the street and maintain the environment, collect prescribed management expenses, and establish a building site adjacent to the building building without the permission of the competent authorities, and then establish a building site covering the above building site with the building permit of 359 square meters above that of the building, and then, it is not allowed to remove the building site of this case.

In addition, Article 98(1) of the Enforcement Decree of the Building Act provides that the building-to-land ratio, etc. shall not apply to the tea-building facilities, while Article 98(1) of the Building Act provides that the building-to-land ratio shall not be applied to the tea-building facilities. Thus, in light of the above overall circumstances, the mere fact that the Plaintiff constructed the instant building without permission from the competent authority cannot be deemed to seriously undermine the public interest solely on the ground that the Plaintiff’s construction of the instant building without permission does not remove the instant building and leaving it unattended. Thus, the instant order issued to the instant building shall be deemed an illegal disposition which fails to meet the requirements under Article 2 of the Administrative Vicarious Execution Act

However, if the original building is neglected without permission only for reasons such as urban landscape, residential environment, traffic flow, etc., such as the time of original adjudication, if it is left without permission, it would endanger the smooth performance of construction administration by nullifying the authority controlling the illegal building's competence, and it would be likely to undermine the greater public interest to prevent the avoidance of the restriction provisions under the fire-fighting facilities, parking facilities, and other Building Act at the time of the construction permission and completion inspection (see Supreme Court Decision 84Nu92 delivered on September 11, 1984). In addition, if the original building reaches 359 square meters in floor area as of the time of original adjudication, the fence of the house adjacent to the back wall of the market building should be installed, and if a large number of persons have entered and used the building by putting the string and tent covered on that building, it must be considered that the building itself satisfies the requirements for the maintenance of the building as a small building without consideration of the method and requirements for the public interest.

If so, the judgment of the court below as seen above is erroneous in the misapprehension of legal principles as to the requirements for the disposition of the order of succession, which is justified in this regard.

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 Song Man-man (Presiding Justice)