The Defendant’s imposition of enforcement fines of KRW 12,90,00 among the imposition of enforcement fines of KRW 399,49,580 against the Plaintiff on March 5, 2015, and the imposition of enforcement fines of KRW 60,970,00 among the imposition of enforcement fines of KRW 114,95,920 against the Plaintiff, shall be revoked.

2. The defendant's appeal is dismissed.

3. 10% of the total costs of litigation shall be borne by the Plaintiff, and 90% by the Defendant, respectively.

The Defendant’s imposition of enforcement fines of KRW 195,064,480, KRW 399,49,580, KRW 114,995,920, KRW 76,785,660 against the Plaintiff on March 5, 2015, respectively, shall be revoked.

2. Purport of appeal

A. The plaintiff

The text of paragraph (1) is as follows.

B. Defendant

The part of the judgment of the first instance against the defendant shall be revoked, and the plaintiff's claim corresponding to the revocation shall be dismissed.

The reasoning for the court's explanation concerning this case is as follows: "the instant disposition imposing a non-performance penalty" as "the disposition imposing a non-performance penalty" as "the disposition imposing a non-performance penalty" as "371,730,370 won" as "371,730,370 won" as "39,49,580 won" as "114,95,920 won" as "the 51,948,000 won" as "the 51,948,000 won" as "the 51,948,000 won" as "the 2-4 (1), (c), and 2-4 (3) as "the 51,948,00 won" as "the 51,948,000 won" as "the 2-4 (1), (3), and 2-4 (3) as stated below. Thus, it is identical to the reasoning of the first instance judgment as stated in Article 8 (2) of the Administrative Litigation Act and the Civil Procedure Act.

2. Parts in height:

○ The provisions of Section 2-D.(1)(b) and (c) of the first instance judgment are as follows.

(B) (B) The Defendant asserts that the grounds for the imposition of the instant charge for compelling compliance are Article 16 of the Building Act, and Article 16(1) of the Building Act provides that a project owner shall obtain permission from the permitting authority or report to the Special Self-Governing City Mayor, Special Self-Governing Province Governor, or the head of a Si/Gun/Gu before changing the matters permitted or reported under Article 11 or 14, as prescribed by Presidential Decree, but the Plaintiff did not follow the said procedures, thereby,

However, Article 80(1) of the Building Act, which provides for enforcement fines for a violation of the Building Act, provides that where a building is constructed in excess of the building-to-land ratio or the floor area ratio under Articles 55 and 56 of the Building Act, the amount equivalent to 50% of the standard market price for the extended area shall be imposed as enforcement fines for the violation of Article 11, 14 (1) of the Building Act, and Article 16 (2) of the Building Act provides for the imposition of enforcement fines for a violation of Article 10 of the Act within 10/100 of the standard market price for the unlawful extension of the building, without permission or reporting. Article 115-2(2) of the Enforcement Decree of the Building Act provides for the imposition of enforcement fines for a violation of Article 10 of the Building Act within the scope of 10/100 of the standard market price for the unlawful extension of the building. Article 16 of the Building Act provides for the same purpose of use as that of the building without permission or reporting.

Furthermore, the following circumstances revealed by the evidence revealed as above, namely, ① the above building is difficult to be deemed an unauthorized construction because there was a lawful building permit, ② the alteration of the purpose of use is premised on the approval for use, so long as the above 1 through 3 buildings were not approved for use, Article 19 of the Building Act cannot be applied. ③ Ultimately, the alteration of the purpose of use of the above 1 through 3 buildings is deemed to be a violation of Article 16 of the Building Act, and the enforcement fine is not separately stipulated, ④ the Plaintiff obtained approval for temporary use from the Defendant on January 17, 2012 for the target 1 building, ④ the evidence submitted by the Defendant alone is difficult to view that the above 1 or 3 buildings were constructed differently from the original permitted contents to the extent that the permission for alteration was to the extent that the original permitted items were to have been obtained, ⑤ the Defendant did not approve the use of the building in a case where the building was constructed differently from the permission, or imposed the enforcement fine without permission for a violation of Article 105 of the Building Act or imposed a punishment against the above unlawful act.

(C) In addition, the Defendant asserts that the approval for provisional use was obtained for the building subject to the approval for temporary use, and as seen earlier, the Plaintiff obtained a provisional use approval for the building from the Defendant on January 17, 2012, but the approval for provisional use was temporarily granted for the part completed by the construction without completion of the construction. The approval for provisional use as of January 17, 2012 is effective only for a maximum of two years. In light of the fact that the approval period for provisional use as of January 17, 2012 was only until April 30, 201, and that there was no construction by the temporary use approval, it cannot be deemed that it constitutes the approval for temporary use as stipulated in Article 22 of the Building Act.)

○ Article 2-4(d)(3) of the first instance judgment is as follows.

[3] Imposition of enforcement fines on the ground of unauthorized extension of the building 1 or 2

(A) According to Articles 79(1) and 80(1) of the Building Act, the permitting authority shall impose a fine for compelling compliance on the owner, contractor, field manager, manager, or occupant who fails to comply with the corrective order within the corrective period after receiving the corrective order for the building in violation of Article 79(1) and Article 80(1) of the same Act. The said statutory provisions aim at promoting public welfare by improving the safety, function, and aesthetic view of the building. Although the owner directly caused the unlawful state of the building or was not involved in the extension of the building, the permitting authority may issue a corrective order to the owner even if the owner directly caused the unlawful state of the building or was not involved in the extension (see, e.g., Supreme Court Decision 2012Du20137, Sept. 13, 2013). Meanwhile, whether the extended part is deemed consistent with the existing building as well as the physical structure attached to the existing building, whether it can become a separate object in trade with independent economic utility from the existing building in terms of its use and function, and the intent of the owner (see, etc.

(B) According to the above legal principles, according to the above evidence and the statements and images of Gap evidence as well as Gap evidence Nos. 7, 9, 10, 14 through 17, and Eul evidence Nos. 16 through 28 (including the number of pages), the non-party company that leased the target 1, 2 building and used as logistics facilities installed a rain gate (hereinafter referred to as the "facilities of this case") to protect things from snow or rain when carrying out physical distribution operations in the above 1, 2, or outdoor, the non-party company's employees were suspended from indictment on October 30, 2015. The non-party company's facilities of this case were installed with a pipe on the ground and the roof of the previous building, which had no walls over the roof of the previous building, and were installed at 1,000 square meters adjacent to the building, and most of the facilities subject to removal or removal of 2,000 square meters adjacent to the building.

According to the above facts, the above facilities of this case were temporarily installed because the non-party company, the lessee, used the above 1,2 buildings as a factory facility or swimming pool for its original purpose, or as a warehouse other than a distribution facility. Moreover, the building installed in the above 2 building seems to have been used more than the target 2 building than the target 2 building, and it seems to have been used independently from the target 2 building. Although the columns of the above facilities of this case are fixed on the floor, it does not seem to be physically possible to separate them from the target 1, 2 building, or the site, and thus, it cannot be readily concluded that the above facilities of this case were owned by the plaintiff due to their conformity with the target 1, 2 building or the site, and there is no data to view that the plaintiff used or managed the above facilities of this case.

Thus, the plaintiff did not have legitimate authority to implement the corrective order of the defendant ordering the removal of the facility of this case. Thus, the part concerning the unauthorized extension of the facility of this case, which was premised on the plaintiff as the disposal authority of the facility of this case, is unlawful without having to consider the remaining part.

(4) Sub-determination

The legitimate amount of enforcement fines to be imposed on the target 1 through 4 buildings shall be as follows:

A person shall be appointed.

Therefore, on March 5, 2015, the part exceeding 14,869,215 won among the disposition imposing enforcement fines of KRW 39,49,580 on the Plaintiff (the part revoking the first instance trial + KRW 371,730,370, + the part revoking the first instance trial + KRW 12,90,000), among the disposition imposing enforcement fines of KRW 114,95,920 on the second building, exceeding KRW 2,07,920 (the part revoking the first instance trial + KRW 51,948,000) among the disposition imposing enforcement fines of KRW 51,948,00 on the second instance + the revoked part of the first instance trial + KRW 60,970,000), among the disposition imposing enforcement fines of KRW 195,064,480 on the third building (the part revoking the first instance trial) shall be revoked).

3. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claims shall be dismissed as it is without merit. Since part of the judgment of the court of first instance differs from this conclusion, the plaintiff's appeal is accepted and the remaining part of the judgment of the court of first instance is justified with the conclusion, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Min Young-young

Judge Lee Jong-tae