beta
(영문) 서울고등법원 2020.07.15 2020누35150

이행강제금부과처분취소

Text

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The purport of the claim and appeal is the purport of the appeal.

Reasons

In addition to supplementing the judgment of the court of first instance as stated in paragraph (2), the court’s explanation concerning this case is identical to the part concerning the reasoning of the judgment of the court of first instance. Thus, the court’s explanation as to this case is cited by Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

The gist of the supplementary argument by the plaintiff is that the defendant specified the plaintiff's act of violation only after August 20, 2018. Based on this, it should have undergone prior notice and guidance procedures on the disposition of this case.

However, the Defendant imposed the instant disposition without going through such procedures, and thus, was illegal.

Judgment

In light of the following circumstances, which can be seen by adding up the overall purport of arguments as a whole to the evidence of the first instance trial, the Defendant appears to have lawfully given a prior notice under Article 21 of the Administrative Procedures Act prior to the instant disposition, and had received a corrective order and a warning under Articles 30 and 30-2 of the Development Restriction Zone Act. Therefore, the Plaintiff’s above assertion cannot be accepted.

Around January 29, 2018, a public official belonging to the defendant confirmed the violation of the Act on the Development Restriction Zones, such as construction of buildings, alteration of the form and quality, and piling up goods, on the instant land and adjacent land. On January 31, 2018, the plaintiff and the plaintiff, who is the owner of the instant land and adjacent land, notified them to the effect that "where they fail to restore to the original state, they may be subject to reporting and enforcement fines in accordance with the relevant Acts and subordinate statutes," and the above prior notice appears to meet all the requirements of Article 21 of the Administrative Procedures Act.

Although the Defendant stated “B and two parcels,” or “B,” the place of the violation in the above prior notice and each notice, it appears that the Defendant could be aware of the entire violation of the instant land and adjacent land through the location map and on-site photographs attached to the prior notice.

In addition, the defendant on May 24, 2018, the place where the plaintiff committed the above violation.