2. Each disposition of imposition of enforcement fines of KRW 73,060,000 against the non-party corporation on August 2, 2007 and KRW 75,729,500 against the non-party corporation on August 18, 2008 shall be revoked.

3. The total costs of the lawsuit shall be three minutes, and one of them shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

The Defendant’s imposition of enforcement fines of KRW 73,060,00 against Nonparty Co., Ltd. on August 2, 2007, KRW 71,514,500 for enforcement fines of KRW 71,514,50 for enforcement fines of February 18, 2008, and KRW 75,729,50 for enforcement fines of KRW 75,729,50 for enforcement fines of August 18, 2008 shall be revoked.

2. Purport of appeal

The same shall apply to the order.

A. The building owner of the Daegu Seo-gu Two-dong, Daegu-dong and the 302-11 and 33 lots of land are located within the two-lane parks determined as urban parks by the Daegu Metropolitan City Mayor. On July 14, 2006, the non-party corporation, the building owner of the emulaland, obtained the approval for the alteration of the implementation plan for the two-lane parks development projects from the Daegu Metropolitan City Mayor on September 20, 2006. On September 20, 2006, the Defendant, the building owner of the emulaland, obtained the permission for the alteration of the use of the one-story parking lot of the 3,409.25 square meters of underground parking lot of the 302-11 and 33 lots of land, the emula City, the emula City, to the second-class neighborhood living facilities (general restaurants, 3,101.79 square meters) and the vehicle passage (307.46 square meters).

B. On September 25, 2006, the Plaintiff leased 2,821 square meters of the 3,409.25 square meters of the 1st basement parking lot listed in paragraph (a) from the non-party corporation (hereinafter “the instant building”) as a general restaurant and directly performed the installation and interior work necessary for business. The non-party corporation was approved to use the instant building from the Defendant on January 26, 2007.

C. However, the Plaintiff used part of the instant building for wedding purposes after the approval for use was made, and on April 25, 2007, the head of the Seoul Daegu Metropolitan City Two Park Management Office (hereinafter “the head of the Two Park Management Office”, the head of the Daegu Metropolitan City Two Park Management Office (hereinafter “the head of the Two Park Management Office”) issued a “voluntary removal of illegal wedding facilities” under the Administrative Vicarious Execution Act, stating that the said wedding facilities shall be voluntarily removed until May 25, 2007 and the said wedding facilities shall be voluntarily removed and restored to their original original state, on the ground that the use of the wedding facilities is changed to a general restaurant or a wedding business without permission.

D. On June 1, 2007, the head of the Two Park Management Office issued the second notice of the removal to Nonparty Co., Ltd., a voluntary removal of the above wedding facility by June 25, 2007 and the second notice of the removal to the effect that a non-party Co., Ltd. will take administrative measures in accordance with the Administrative Vicarious Execution Act if he/she fails to comply with the order within a given period. On June 27, 2007, the head of the Two Park Management Office requested the Defendant to voluntarily remove the facility on two occasions, but the non-party Co., Ltd. failed to comply with the corrective order within a given period. Thus, the head of the Two Park Management Office requested the Defendant to take administrative measures such as enforcement fines.

E. On July 2, 2007, the Defendant issued a corrective order to the non-party corporation, but notified the non-party corporation of a prior disposition on the imposition of KRW 75,348,000 for the charge for compelling the use (area 1,449 square meters for the violation) and the notice of accusation against the non-party corporation on August 2, 2007, the Defendant imposed KRW 75,348,00 for compelling the performance (the first disposition) on the non-party corporation on August 2, 2007, and imposed the charge for compelling the performance of KRW 2,28,000 for the charge for compelling the use of KRW 73,060 for the amount of 44 square meters calculated by mistake on September 21, 207 (the remaining disposition after reduction).

F. Nevertheless, the corrective order issued on April 25, 2007 was not implemented. On July 14, 2008, the defendant issued each prior notice of disposition to the non-party stock company pursuant to Article 69-2 (2) and (4) of the former Building Act (amended by Act No. 8852 of Feb. 29, 2008; hereinafter the same shall apply). On February 18, 2008, the defendant imposed the enforcement fine of KRW 71,514,500 on the non-party stock company (the second disposition), and imposed the enforcement fine of KRW 75,729,500 on August 18, 2008 (the third disposition, hereinafter, hereinafter, 1, and 3 are referred to as "each disposition of imposition of this case").

[Reasons for Recognition] In without dispute, Gap evidence 1-2, Gap evidence 2-1, Gap evidence 3-1, Gap evidence 8-2, Gap evidence 1-2, Gap evidence 10, Gap evidence 12, Gap evidence 17-1, 2, Eul evidence 1, 2-2, Eul evidence 5-1, Eul evidence 6-1, Eul evidence 15, 20, and 21, the purport of the whole pleadings, and the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

For the following reasons, each of the dispositions of this case shall be revoked illegally.

(1) The facilities subject to removal are owned by the Plaintiff, and the non-party corporation, the lessor, is not in the legal status to remove the above facilities, and thus, the non-party corporation cannot become the counter-party to the instant disposition.

(2) Even if a part of the instant building is used as a wedding hall, the main purpose of the instant building is a general restaurant, and thus, it cannot be deemed as a change in the use under the Building Act.

(3) The Defendant’s deeming the entire 1,405 square meters as a non-violation area in calculating a non-performance penalty runs counter to the fact-finding of the criminal judgment that the Plaintiff changed its use by installing a wedding facility on the 495.9 square meters of the instant building.

(4) Each of the instant dispositions is based on an order of removal that does not specify the subject and scope of the removal, and does not specify the subject and scope of the disposition.

(5) Since the Act on Urban Parks, Greenbelts, Etc. (hereinafter “Urban Park Act”) provides for the procedure for altering the purpose of use of buildings located within urban natural park areas and the disposition against a person who has violated it, each disposition of this case based on the former Building Act is unlawful, and each disposition of this case is imposed on the grounds that no provision for imposing a non-performance penalty exists and no provision for citing or applying mutatis mutandis the Building Act. According to Article 69-2(1) and (2) of the former Building Act, where a person who has the authority to permit the alteration of use of a building is the head of a Si/Gun/Gu, and a project owner, etc. violates the permitted matters, the person having the authority to permit the alteration of use of the building can take corrective measures, such as removal, etc., against the project owner, etc., and even if the project owner, etc. fails to comply with the corrective order, each disposition of this case is unlawful.

(6) Each of the instant dispositions disposition deviates from and abused the bounds of discretion.

B. Relevant statutes

It is as shown in the attached Form.

C. Facts of recognition

(1) On December 1, 2006, the Defendant notified the non-party corporation of the fact that the Plaintiff, who leased the instant building, installed a platform for the purpose of wedding unlike the design drawing while constructing facilities necessary for the business. Upon the correction of the violation, the Defendant approved the use of the instant building on January 26, 2007.

(2) After obtaining approval for use as above, the Plaintiff: (a) posted a sign sign sign that “lusle and brusle” on the original design map; and (b) installed a platform, which was used as a wedding place; (c) attached a sign sign sign such as a guide room, a single room, an employee resting room, etc. on the design map, and used it as a place for wedding preparation by attaching a sign sign such as a new unit, a watch room, and a waste white room; and (d) Lovi was used as an office for entertainment receipt stand, a place waiting for customers, and a place for reservation.

(3) Of the instant building, the area that the Plaintiff changed the use without permission is 650.25 square meters in the street (including an office room and a breast room), 137.5 square meters in the Han room and an employee room, 137.5 square meters in the Han room and an employee room, 37.5 square meters in the Han room, 44.18 square meters in the electric room (the passage between Han room and Han room and Han room), 296.4 square meters in the seminars (1) and 239.4 square meters in the total of 1,405.23 square meters in the seminars (2).

[Based on Recognition] In the absence of dispute, Gap evidence 5-1 through 30, Gap evidence 15-1, 2, Gap evidence 16, 18-1 through 3, Eul evidence 3-4, Eul evidence 5-5, Eul evidence 6-2, Eul evidence 9-11, and the purport of the whole pleadings

D. Determination

In light of the details of the above disposition and the purport of the relevant laws and regulations, even if the unauthorized Use of the Building in this case violates the Urban Park Act at the same time, the Urban Park Act does not provide a basis for imposing a non-performance penalty on the violation of the Urban Park Act. Since the two parks management authorities are Daegu Metropolitan City Mayors, not the defendant, and the defendant, in order to impose a non-performance penalty on the building in this case altered without permission, it is legitimate to follow the procedures and methods prescribed by the former Building Act. Under the former Building Act, the construction right authorities may impose a non-performance penalty on the violator of the Building Act after issuing a corrective order under Articles 69(1) and 69-2(1) of the former Building Act. Thus, if the corrective order, which is the pre-disposition of the disposition imposing a non-performance penalty, is unlawful, the imposition disposition of non-performance penalty is also unlawful. Thus, there is no evidence to acknowledge that the defendant, who is the building right holder, prior to the disposition of this case, issued a corrective order on the non-party corporation prior to the disposition of this case.

Since the person who has the right to construct the building of this case under the former Building Act is the defendant, the head of the two park management office may issue a corrective order only when the defendant's right to correct the violation is delegated to the head of the two park management office under the provisions of statutes. However, there is no evidence to recognize that the defendant's right to correct the violation of the Building Act is entrusted to the head of the two park management office (it is not possible for the head of the local government to delegate his authority to the head of the two park management office in accordance with the municipal ordinances of the local government, even if the defendant's right to correct the violation of the Building Act is not entrusted to the head of the two park management office, and the head of the two park management office can not be entrusted with the authority to correct the violation of the Building Act because the head of the two park management office is only the person entrusted with the management of the two kinds of parks by the Daegu Metropolitan City Mayor and is not subordinate administrative organizations of the defendant, and the notification of the right to correct the violation of the Act by the head of the two park management office of this case.

Thus, the notification of this case made by the head of the Two-Class Park Management Office is a corrective order made by a person without authority, and therefore, the disposition of this case on the premise that the above corrective order is valid shall not be exempted from its revocation because of its illegality.

3. Conclusion

Therefore, the plaintiff's claim seeking the revocation of each of the dispositions of this case is justified, and the judgment of the court of first instance is unfair with different conclusions. Thus, the part against the plaintiff in the judgment of the court of first instance regarding each of the dispositions of this case shall be revoked, and it is so decided as per Disposition with the decision to revoke each of the dispositions of this case.

[Attachment] Relevant Statutes: omitted

Judges Choi Choi-sik (Presiding Judge)