[건축법위반·주차장법위반][공2004.6.15.(204),1027]
[1] Whether the facility area or the number of households, which is the standard for determining the scale of an attached parking lot under the Parking Lot Act, include the illegally constructed area or the number of households (affirmative)
[2] Whether a person may be punished for a violation of Article 19(1) and (3) of the Parking Lot Act due to a failure to establish an attached parking lot in order to reinstate the illegally constructed part of the facility without establishing an attached parking lot (affirmative)
[1] As a standard for determining the scale of an attached parking lot under the Parking Lot Act, it shall not be deemed that only the legally constructed area or the number of households in light of the relevant laws and regulations, such as the Building Act, does not mean only the legally constructed area or the number of households, and it is reasonable to understand that it refers to the total area and the number of households of the facilities actually constructed or installed, including the illegally constructed area
[2] The crime of violation of Article 19(1) and (3) of the Parking Lot Act is established immediately by causing danger to the legal interest that the person intends to construct or install an attached parking lot and to protect the said Articles. Since the act of infringement of the legal interest continues to exist thereafter, the act of infringement of the legal interest that occurred by constructing an attached parking lot without installing an attached parking lot according to the facility standard does not cease to exist after it satisfies the facility standards ex post by either expanding an attached parking lot or partially removing or changing the purpose of use of the facility. Since the Building Act and the Parking Lot Act are different from the legislative purport, even if the part illegally constructed by the defendant was terminated by restoring it to its original state, the act of violation of Article 19(1) and (3) of the Parking Lot Act committed at king cannot be subject to any legal assessment and punishment separate from the act of violation of the Building Act.
[1] Articles 1 and 29(1)1 of the former Parking Lot Act (amended by Act No. 6655 of Feb. 4, 2002); Article 6 [Attachment Table 1] of the Enforcement Decree of the Parking Lot Act / [2] Article 19(1) and (3) of the Parking Lot Act
Defendant
Prosecutor
Suwon District Court Decision 2003No3343 delivered on December 4, 2003
The judgment of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.
1. The lower court: (a) deemed that the Defendant, who is the owner of an attached parking lot of 150 square meters and the number of multi-households with an area exceeding 200 square meters in the case of neighborhood living facilities; (b) plus one unit per 87 square meters in the case of multi-households with an area exceeding 200 square meters (Provided, That if the total number of parking lots falls short of 0.7 units per household, 0.7 units per household), should install an attached parking lot with an area exceeding 0.7 square meters in the case of multi-households with an order to install an attached parking lot with an area exceeding 150 square meters in the case of multi-households, which is an urban area designated by the Act on the Utilization and Management of the National Territory; (c) the Defendant, who is the owner of an attached parking lot of 20 Dong-dong 918 (hereinafter referred to as the “instant building”), should be deemed to have failed to install a parking lot with an area exceeding 150 square meters and 244 square meters in each residential area.
2. However, the lower court’s determination is difficult to accept.
A. The former Parking Lot Act (amended by Act No. 6655 of Feb. 4, 2002; hereinafter referred to as the “ Parking Lot Act”) was enacted to facilitate the smooth flow of motor vehicles by prescribing matters necessary for the installation, maintenance, and management of parking lots (Article 1). The legislative purpose or legal interest of the Building Act is completely different from the Building Act enacted to contribute to the promotion of public welfare by enhancing the safety, function, and aesthetic view of the building by setting the standards for the site, structure, and equipment of the building and the use of the building. Article 29(1)1 of the Parking Lot Act does not punish the act of not installing an attached parking lot, but rather punish the act of constructing or installing an attached parking lot without establishing an attached parking lot. Whether the facility is legitimate under the Building Act. In light of Article 6 and [Attachment 1] of the Enforcement Decree of the Parking Lot Act or Article 15-2 and [Attachment 2] of the Ordinance on the Installation and Management of Parking Lots at the time of the Building Act, which does not interfere with the construction or reporting on the area of an attached parking lot.
B. In addition, the crime of violation of Article 19(1) and (3) of the Parking Lot Act is established immediately by causing danger to the legal interest that the person intends to construct or install an attached parking lot without installing an attached parking lot, and then only the situation of infringement of the legal interest remains. On the other hand, the infringement of the legal interest that occurred from the construction of an attached parking lot without installing an attached parking lot pursuant to the facility standard does not cease to exist after meeting the facility standards by either expanding an attached parking lot or partially removing an attached parking lot or changing the purpose of use. As seen earlier, the Building Act and the Parking Lot Act are different from the legislative purport. As such, even if the defendant terminated the legal interest by restoring illegally constructed parts, even if the situation of infringement of the legal interest that occurred from the violation of Article 19(1) and (3) of the Parking Lot Act is terminated by restoring the building of this case to comply with the original permission contents, and thus, it cannot be deemed that the defendant has a duty to additionally install an attached parking lot in accordance with the current situation.
C. Ultimately, the lower court’s decision that acquitted the Defendant of the non-establishment of an attached parking lot among the facts charged in the instant case is erroneous in misapprehending the legal principles on the facility standards for an attached parking lot under the Parking Lot Act, which affected the conclusion of the judgment. Therefore, the prosecutor pointed out this point
3. Therefore, the non-guilty part of the judgment below shall be reversed, and the case shall be remanded to the court below. It is so decided as per Disposition.
Justices Lee Yong-woo (Presiding Justice)