[건물철거대집행계고처분취소][하집1991(3),451]
Whether there is a benefit in litigation to seek the revocation of notification disposition by a warrant for vicarious execution, simultaneously with the revocation of a disposition for vicarious execution.
The notification disposition by a warrant for vicarious execution and a warrant for vicarious execution are a part of the procedures that develop in a phased manner for the realization of the same purpose as vicarious execution. As such, seeking the revocation of two or more dispositions in a series of procedural procedures simultaneously on the ground of common illegality is unnecessary overlapping claims pertaining to the subsequent administrative dispositions. Therefore, it is inappropriate to seek the revocation of notification disposition by a warrant for vicarious execution simultaneously with the cancellation of a disposition for vicarious execution.
Article 12 of the Administrative Litigation Act, Article 3 of the Administrative Vicarious Execution Act
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1. Of the instant lawsuit, the part that the Defendant seeks revocation of the notification disposition by means of a writ of vicarious execution regarding the removal of the building indicated in the attached Table attached hereto, which the Plaintiff rendered on February 22, 191, shall be dismissed.
2. The plaintiff's remaining claims are dismissed.
3. Litigation costs shall be borne by the plaintiff.
The disposition of the removal, replacement, and dismissal order for the building indicated in the attached list that the Defendant reported to the Plaintiff by the Defendant and the notification by the warrant of vicarious execution on February 22 of the same year shall be revoked, respectively.
The judgment that the lawsuit costs shall be borne by the defendant.
1. Determination on this safety defense
Although the defendant filed an administrative appeal against the pertinent administrative agency or its immediate superior administrative agency pursuant to Article 7 of the Administrative Vicarious Execution Act, the defendant asserted that the lawsuit of this case is not appropriate in violation of Article 18 (1) of the Administrative Litigation Act, because the plaintiff filed an action for the cancellation of the notification by the order of vicarious execution and the order of vicarious execution without going through an adjudication on it.
On the other hand, a lawsuit seeking cancellation of an administrative disposition may not be brought in principle without the adjudication of the court in cases where it is possible to bring an administrative appeal against the pertinent disposition pursuant to the provisions of Acts and subordinate statutes. However, in such cases, if there is an urgent need to prevent serious damage that may be caused by the execution of the disposition or the continuation of the procedure, a lawsuit seeking cancellation may be brought without the adjudication (Article 18 (2) 2 of the same Act). The defendant, as of January 11, 191, ordered the plaintiff to transfer the building of this case as the object of removal in the separate sheet to the plaintiff as of February 22 of the same year, and thereafter, notified the warrant to remove the building of this case as of March 4 of the same year after the date of the first ruling, and the plaintiff cannot bring an action for cancellation of the administrative appeal after the date of the first ruling or the first ruling of this case to the same effect as before the date of the first ruling of this case. Thus, the plaintiff cannot bring an action for cancellation of the administrative appeal or the first ruling of this case as of this case.
2. Details of the disposition;
(A) The construction of the building in this case owned by the Plaintiff on the ground of the 45th, Sim-dong, Simyeong-dong, U.S., which is located within the development restriction zone. The Defendant issued a warrant notice to the Plaintiff on January 11, 1991 on the ground that the Plaintiff, after designation of the development restriction zone, constructed or extended the building in this case without permission after the designation of the development restriction zone, sold the building in this case to the Plaintiff for vicarious execution without voluntary removal within 30 days from the delivery date of the building in this case, and on the ground that the Plaintiff did not perform removal within the said period, there was no dispute between the parties.
(B) The plaintiff asserts that since the building in this case was actually constructed before 1978 and is a legitimate building registered in the building management ledger within the development restriction zone kept by the defendant, the defendant's disposition of the order in this case and notification of the vicarious execution warrant are all unlawful.
(C) Therefore, with respect to the part on which revocation of notification of a warrant of vicarious execution is sought, the part on which revocation of notification of a warrant of vicarious execution is sought is an unnecessary duplicate claim regarding two or more dispositions in the series of phased administrative procedures, on the ground of common illegality, and thus, the part on which revocation of notification of a warrant of vicarious execution is sought is ultimately unlawful.
(D) Furthermore, with respect to the legitimacy of the instant order disposition, the following facts are comprehensively taken into account: (a) evidence Nos. 4-1, 2 (the building register within each development restriction zone, evidence Nos. 3-3, and evidence No. 3-1; (b) evidence Nos. 2-1 through 4 (each building register within each development restriction zone), evidence Nos. 3-2, and evidence Nos. 3-4 (the building register within each development restriction zone), and evidence Nos. 4 (the airline reading association within each development restriction zone), and the whole purport of the oral argument No. 26 buildings are all constructed on the ground that the development restriction zone was announced on August 25, 1972; and (c) some buildings constructed before or after the development restriction zone were constructed without permission; and (d) building Nos. 348, Dec. 12, 198, which were newly constructed or constructed without permission No. 1987.
3. Conclusion
Therefore, the part seeking the cancellation of the notification of a warrant of vicarious execution in the lawsuit of this case is unlawful and dismissed, and the remaining part of the claim seeking the cancellation is dismissed on the premise that the disposition of the appeal of this case is unlawful, and it is so decided as per Disposition with the plaintiff who is the losing party.
Judges Kim Jae-chul (Presiding Judge)