[2] The case reversing the judgment of the court below on the ground of incomplete hearing, on the ground that the administrative agency's permission to alter a building site had an additional note to remove the wall part of the neighboring building that was affected by the building site and install a wall on the site boundary, which is the subject of administrative litigation independently

[2] The case reversing the judgment of the court below on the ground of incomplete hearing, on the ground that the administrative agency's permission to alter a building site had an additional note to remove the wall part of the neighboring building that was affected by the building site and install a wall on the site boundary, which is the subject of administrative litigation independently.

1. According to the reasoning of the judgment below, the court below rejected the Plaintiff’s application for suspension of construction on June 14, 1993, for the following reasons: (a) since the Plaintiff received from the Defendant on June 14, 1993 a construction order for multi-household housing with 321m3m2 on the ground of 583m2, a general residential area, 321m2, a site area, 649m26m2, a maximum height of 12.4m2, and 13m2 from the Defendant’s building, and received an order for suspension of construction on the ground that part of the above site was installed with a fence of a neighboring building owner; (b) the Plaintiff did not neglect the construction order and completed multi-household housing construction on May 1, 1997; and (c) the Plaintiff’s application for suspension of construction on the ground that it did not constitute a violation of the duty of additional construction permit’s construction permit’s completion of construction on the ground that it did not violate the construction permit’s order for suspension of construction.

2. However, according to the relevant provisions such as Article 72 of the Building Act and Article 118 of the Enforcement Decree of the Building Act, if the building owner intends to install a fence more than 2 meters, it shall be reported, and construction-related Acts and subordinate statutes do not have any provision to the effect that a fence should be installed at the time of the construction of the building. Thus, the Defendant’s attachment of a new fence to the Plaintiff in granting the instant permission for the alteration of the construction of the building of the building of the building of the case is illegal

Therefore, the part of the court below's decision that the plaintiff's new fence was lawful after installing a new fence according to the boundary line of the land, is erroneous in the misapprehension of legal principles as to additional conduits that may be attached at the time of building permission, its grounds and limitations, etc., which affected the conclusion of the judgment. Thus, the ground of appeal on this point is with merit.

3. The subsidiary officer of the administrative act can not be the subject of administrative litigation independently except for the case of the burden (see, e.g., Supreme Court Decisions 90Nu8503, Dec. 13, 1991; 93Nu2032, Oct. 8, 1993). According to the reasoning of the judgment below, the court below should remove the fence part of the neighboring building located in the complex until the application for the approval of use is filed, as seen above, the part of the subsidiary officer of this case that "the application for the approval of use shall be filed after removing the fence part of the neighboring building located in the complex until the application for the approval of use is filed," as it is independent of the permission of construction alteration, and judged whether it is legitimate.

However, according to Articles 1 and 3 of the Building Act, a building under the Building Act should, in principle, observe the relevant provisions of the Building Act, unless there are special provisions, and Article 9(1) of the Enforcement Decree of the Building Act, and Article 6(1) of the Enforcement Rule of the Building Act provides that the scope of the site to be constructed as a document attached to an application for a building permit shall be submitted to certify the right to own or use the site, and in the case of a building constructed as permitted under the Building Act, approval for use shall be granted unless there are special circumstances. Thus, it is difficult to conclude that the removal of the wall is a so-called burden imposing an independent performance obligation separate from the building permit. In addition, according to the records, it is difficult to view that the defendant expressed his/her intent to cancel the building permit in the event of a non-performance of the above sub-section, the need for the above sub-section, the defendant's intention in addition to the above administrative agency, or the administrative practice taken by the administrative agency in the event of a non-performance of the above contents, etc.

If so, the court below did not reach this and determined the measure on the merits by deeming that the above removal gate was the burden of the above removal gate, and there is an error of law that affected the conclusion of the judgment by failing to exhaust all necessary deliberations or by misunderstanding the legal principles on the

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Im-soo (Presiding Justice)