[시설물철거대집행계고처분취소][공1998.12.1.(71),2785]
[1] Whether the duty to leave and order the occupant of an urban park facility is subject to a vicarious execution under the Administrative Vicarious Execution Act (negative)
[2] Whether Article 85 of the Local Finance Act permits the vicarious execution of a duty not to act as a substitute (negative)
[1] The disposition that the management agency of a shop, which is an urban park facility, leaves one of the joint occupants from the above stores within a prescribed period of time and does not remove the sales facilities and goods incidental thereto, is not to remove the illegal facilities installed by the possessor in order to preserve the original form of the shop, but to exclude the possession of the possessor of the shop and take the occupancy transfer of the shop. However, the obligation is not a direct exercise of power in the realization of it, but a direct exercise of power does not constitute an alternative duty, and it does not constitute a vicarious execution under the Administrative Vicarious Execution Act.
[2] Article 85 of the Local Finance Act provides individual grounds for removal vicarious execution, and at the same time applies mutatis mutandis only to some of the requirements and procedures for removal vicarious execution under the Administrative Vicarious Execution Act, and it does not purport to allow compulsory execution to other kinds of obligations that cannot, in principle, be subject to vicarious execution, as they do not belong to the alternative duty of act.
[1] Article 2 of the Administrative Vicarious Execution Act / [2] Article 85 of the Local Finance Act
[1] Supreme Court Decision 96Nu5445 delivered on October 2, 1998 (Gong1998Ha, 2608) / [2] Supreme Court Decision 72Nu175 delivered on October 23, 1973 (No. 21-3, 5) Supreme Court Decision 95Nu10020 delivered on October 11, 1996 (Gong1996Ha, 3343)
Plaintiff
Head of Gwanak-gu Seoul Special Metropolitan City
Seoul High Court Decision 95Gu3536 delivered on November 21, 1996
The appeal is dismissed. The costs of appeal are assessed against the defendant.
The grounds of appeal are examined.
1. On the second and third points
According to the reasoning of the judgment below and the records, the disposition of the instant order is the content that the Defendant, as the management agency, leaves the shop which is a joint occupant within the prescribed period of time, and does not remove the sales facilities and goods incidental thereto. In the event that the Defendant, as the joint occupant, leaves the shop within the prescribed period of time, the disposition of the instant order is a vicarious execution.
Therefore, the obligation, which was the object of the instant order disposition, does not intend to remove the illegal facilities installed by the Plaintiff in order to preserve the original form of the said store, but rather to exclude the Plaintiff’s possession of the said store and take possession of the said store. However, the obligation is not a matter of direct enforcement, as it is not a matter of course, nor a matter of direct enforcement under the Administrative Vicarious Execution Act, since it is necessary to exercise the direct power in the compulsory realization of it, but it does not constitute a matter of direct enforcement.
In the same purport, the court below was justified in holding that the order of this case was unlawful on the grounds that the order of this case was made against the duty not to be the object of vicarious execution, and there is no error in the misapprehension of legal principles as to vicarious execution, and there is no error in the misapprehension of legal principles as to the order of appeal. The grounds for appeal on
2. On the first ground for appeal
Article 85 of the Local Finance Act provides that Article 3 through 6 of the Administrative Vicarious Execution Act shall apply mutatis mutandis to cases where public property is occupied or installed without any justifiable reason (Paragraph (1) to the head of the local government, and Articles 3 through 6 of the same Act shall apply mutatis mutandis to cases where compulsory removal is carried out (Paragraph (2)). The above provision is solely intended to provide individual grounds for vicarious removal and to apply only some of the requirements and procedures for vicarious removal under the Administrative Vicarious Execution Act (see Supreme Court Decision 95Nu10020, Oct. 11, 1996). It does not purport to allow compulsory execution to other kinds of obligations that do not fall under the alternative duty, and thus are not subject to vicarious removal as a matter of principle. Accordingly, the escape obligation subject to the instant order does not belong to the alternative duty that is subject to the vicarious removal under Article 85 of the Local Finance Act.
The decision of the court below as to this conclusion is just, and there is no error in the misapprehension of legal principles as to the above legal provisions. The ground of appeal as to this point is not accepted.
3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the defendant-Appellant. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Jeong Jong-ho (Presiding Justice)