[담장설치공사중지명령취소][공1990.8.1.(877),1482]
After reporting to an administrative agency, the installation works of fences were in progress, but the administrative agency withdraws the disposition of acceptance of the report, and the administrative agency withdraws the disposition of suspension of construction (negative)
With respect to the reported matters under the Building Act, a building can be constructed only if a person who intends to build a building satisfies the legitimate requirements, and it is unnecessary to put the order of the administrative agency, such as repair disposition, etc., and thus, the act of construction by the administrative agency may not be deemed to violate the Building Act. Thus, the act of construction by the administrative agency may not be ordered to suspend the construction for this reason. Moreover, construction of fences less than 2 meters is possible without any permission or report under the Building Act or the Urban Planning Act. However, the Seoul Special Metropolitan City stipulates that construction by the administrative convenience guidelines shall be done without any permission or report under the relevant Acts and subordinate statutes, such as the Building Act. However, the above provision stipulates that the construction by the Seoul Special Metropolitan City shall be done after the report is made by the plaintiff himself and the defendant, who is the administrative agency, should report it in accordance with the above work performance guidelines, and as long as the plaintiff does not voluntarily withdraw the report, the order of construction suspension cannot be ordered because the defendant withdraws the report and the order of construction suspension is unlawful.
Article 5 of the Building Act, Article 100 subparagraph 5 of the Enforcement Decree of the Building Act
Supreme Court Decision 68Nu12 Decided April 30, 1968 (No. 16 ① 37)
Kim Jong-soo et al., Counsel for the defendant-appellant
The head of Jongno-gu
Seoul High Court Decision 89Gu10915 delivered on January 31, 1990
The appeal is dismissed.
The costs of appeal are assessed against the defendant.
We examine the grounds of appeal.
According to the reasoning of the judgment below, on March 29, 1989, the court below acknowledged the fact that the plaintiff reported to the defendant on March 29, 1989 the installation of a jum wall with a height of 1.9 meters and 230 meters on the land of this case, and that the defendant notified the plaintiff of his withdrawal of the above report on August 31 of the same year, and at the same time ordered the suspension of the above installation work, the above installation of a wall with a height of less than 2 meters shall not be subject to the report under the Building Act, but shall be constructed after the report under the Seoul Special Metropolitan City Construction Report Work Guidelines. Since the plaintiff did not withdraw the report, the defendant's order to suspend construction of this case which
The order to suspend construction (No. 1) issued by the Defendant to suspend construction of the instant case was notified by the Defendant in consideration of all the circumstances regarding the report to suspend construction of a fence. However, since the Plaintiff’s continued construction works, the Plaintiff’s neglect and continued to do so, the content of the above order is that the Defendant ordered the suspension of construction. In light of relevant laws and regulations, the Defendant’s order to suspend construction of the instant case was duly accepted once the Plaintiff’s report to suspend construction of a fence was accepted, but the Defendant’s order to suspend construction of the instant case was issued pursuant to Article 42 of the Building Act on the ground that the above order to suspend construction was revoked
However, with respect to the matters to be reported under the Building Act, a building can be constructed only if a person who intends to build a building satisfies legitimate requirements, and it is not necessary to wait for a group, such as repair disposition by an administrative agency (see Supreme Court Decision 68Nu12, Apr. 30, 1968). Thus, the construction of a building based on the Defendant’s withdrawal of the above repair disposition cannot be ordered to suspend construction for this reason. In addition, as in the instant case, a fence installation work with a height of less than 2 meters is possible without any permission or report under the related Acts and subordinate statutes, such as the Building Act and the Urban Planning Act. However, the Seoul Special Metropolitan City provides that it shall be constructed after a report for the convenience of administration. However, it is not binding upon the Plaintiff’s obligation to report the installation of the fence of this case. Thus, the order to suspend construction of this case, which the Plaintiff received by the Defendant, even if the Plaintiff voluntarily withdraws the report, cannot be ordered to suspend construction of this case.
The theory of lawsuit is based on Article 78 subparag. 3 of the Urban Planning Act, but the above provision is a provision concerning supervisory disposition issued to an urban planning project operator in a case where the continuous implementation of urban planning is deemed likely to seriously harm the public interest, and it is not clear that the plaintiff was not an implementer of urban planning project and it was not the ground for such disposition at the time of the order to suspend the construction of this case and it is not clear that the defendant did not state the above provision or the defendant's
Therefore, while the reasoning of the judgment below is somewhat insufficient, the conclusion that the court below accepted the plaintiff's claim seeking the cancellation of the order to suspend the construction of this case as it judged that the order to suspend the construction of this case was unlawful as it
Therefore, the appeal is dismissed, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Lee Chang-chul (Presiding Justice)