[이행강제금부과처분취소청구][미간행]
Plaintiff (Law Firm Uniform, Attorney Quota-il, Counsel for plaintiff-appellant)
The head of Silsan-si, Silyang-si
March 27, 2013
Suwon District Court Decision 2012Gudan599 decided September 3, 2012
1. The plaintiff's appeal is dismissed.
2. The costs of appeal shall be borne by the Plaintiff.
The judgment of the first instance shall be revoked. The disposition of imposition of KRW 48,000,000 on the charge for compelling the performance that the Defendant rendered to the Plaintiff on December 20, 201 shall be revoked.
1. cite the judgment of the first instance;
The reasoning of this court’s judgment is as follows: (a) adding a judgment on the Plaintiff’s assertion to the next paragraph is the corresponding part of the judgment of the court of first instance. Pursuant to Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act,
2. Judgment on the plaintiff's assertion
A. The plaintiff's assertion
In light of the fact that Article 124-3(3)1 of the Enforcement Decree of the Act provides that the amount equivalent to 10/100 of the acquisition value of the land shall be imposed as a non-performance penalty, and that the Plaintiff re-enters for mushroom growing after the instant disposition, etc., the instant disposition imposing the upper limit of non-performance penalty is erroneous in the misapprehension of discretionary authority.
B. Determination
According to related Acts and subordinate statutes, Article 124-2 (2) of the Act provides that the amount of non-performance penalty shall be determined as “the amount prescribed by Presidential Decree within 10/100 of the acquisition value of the land”; in each subparagraph of Article 124-3 (3) of the Enforcement Decree of the Act delegated by the person who acquired the land by obtaining permission for land transaction contract shall be determined as “the amount equivalent to 10/100 of the acquisition value of the land in cases where the person who acquired the land by obtaining permission for land transaction contract fails to use the land for the initial purpose and leaves it unattended;” “the amount equivalent to 7/100 of the acquisition value of the land in cases where the person who acquired the land by obtaining permission for land transaction contract leases the land without using it directly; “the amount equivalent to 3/100 of the acquisition value of the land” (Article 124 (1) 3); “the amount of non-performance penalty after changing the initial purpose of use without obtaining approval from the head of a Si/Gun/Gu under Article 124 (3).
Therefore, it cannot be deemed that the Defendant’s disposition of this case, which imposed a charge for compelling the performance equivalent to 10/100 of the acquisition value of land, deviates from or abused discretion. The Plaintiff’s assertion on a different premise is not acceptable.
3. Conclusion
The judgment of the first instance is justifiable. The plaintiff's appeal is dismissed.
Judges Choi Jong-ho (Presiding Judge) Kim Tae-ho