[행정처분취소·건물철거계고취소][집31(1)특,157;공1983.5.1.(703),664]
A. Whether leaving a building that intrudes eight square meters on a road site is extremely detrimental to the public interest (affirmative)
B. Criteria for determining the legitimacy of the measures taken by the court
(c) Appropriateness of removal, mooring and removal of structures on the road without revocation of permission to occupy and use the road;
A. If the Plaintiff owns a building on the 8th floor of the road site in the course of constructing a new building, it is reasonable to interpret that the failure to perform the duty to remove the building is extremely detrimental to the public interest, barring any special circumstance.
B. Whether the disposition is lawful shall be determined by determining whether the disposition satisfies the requirements stipulated in Article 2 of the Administrative Vicarious Execution Act. In this case, in a case where the measure is light compared with the former and the former compared with the protection value of the public interest due to the cancellation of the disposition for the purpose of mooring, such as the cancellation of the disposition for the public interest, and the protection value of the public interest due to the permission for the removal of illegal buildings, it shall not be determined that the failure to remove the building of this case, one of the requirements for vicarious execution, is deemed
(c) With respect to a building constructed and occupied and used on the road with permission to occupy and use the road, the order to remove the building without cancelling the permission, in light of the purport of Article 24(3) of the State Properties Act.
(a)Article 2(b) of the Administrative Vicarious Execution Act; Article 3(c) of the State Property Act;
Plaintiff
Attorney Or-do et al., Counsel for resident Gun
Daegu High Court Decision 80Gu143 delivered on April 14, 1981
The appeal is dismissed.
The costs of appeal are assessed against the plaintiff.
The plaintiff's grounds of appeal are examined.
1. On the first ground for appeal:
If the plaintiff owns a building on the 8th floor of the road site in the new construction of the building, it is reasonable to interpret that the failure to perform the duty to remove the building is very detrimental to the public interest unless there are special circumstances. Therefore, the judgment of the court below is just and there is no reason to discuss that the requirements for the disposition of the building are satisfied in this case.
2. On the second ground for appeal:
Whether the disposition is legitimate or not shall be determined by determining whether the disposition satisfies the requirements under Article 2 of the Administrative Vicarious Execution Act. In this case, in comparison with the protection value of the public interest due to the cancellation of the disposition, such as the protection value of the public interest due to the cancellation of the disposition, and the protection value of the public interest due to the permission to remove illegal buildings, if the former is light compared with the latter, it shall not be determined that the failure to remove the building of this case, one of the requirements for vicarious execution, is deemed to seriously undermine the public interest, and therefore there is no reason
With respect to the third point:
Article 24 (3) of the State Properties Act provides that "No person who has obtained permission for use and profit under the provisions of paragraphs (1) and (2) shall construct a building or construct a permanent building on the permitted property, without cancelling the permission for use and profit-making of the building on the road."
4. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Lee Jong-soo (Presiding Justice)