(영문) 서울고법 1987. 8. 17. 선고 86구988 제5특별부판결 : 확정[무허가건축물철거계고처분취소청구사건][하집1987(3),593]
(a) Although temporary accommodation is made, it is the case that it falls under the ‘building' under Article 2 (1) 2 of the Building Act.
(b) Whether the fact that a building was constructed without obtaining permission from the competent authority causes harm to the public interest under Article 2 of the Administrative Vicarious Execution Act;
A. Even if a building is considered as a temporary building without solid walls of part and two sides of the roof, it constitutes a structure fixed on the land, which has a roof and columns or walls, and thus constitutes a building under Article 2 (1) 2 of the Building Act. Thus, the above building completed without obtaining permission from the competent authority constitutes an illegal building.
B. The mere fact that a building was constructed without obtaining permission from the competent authority does not necessarily mean that leaving the building alone would seriously undermine the public interest.
Article 2 of the Building Act, Article 98 of the Enforcement Decree of the Building Act, Article 2 of the Administrative Vicarious Execution Act
New Receipt Market Co., Ltd.
The head of Mapo-gu Seoul Metropolitan Government
The disposition taken by the defendant against the plaintiff on August 26, 1986 against the non-permission temporary buildings of 228-1 of Mapo-gu Seoul Metropolitan Government, Mapo-gu, Seoul Metropolitan Government shall be revoked.
Litigation costs shall be borne by the defendant.
The same shall apply to the order.
(1) On August 26, 1986, the fact that the Defendant rendered a disposition of removal, replacement, dismissal (hereinafter referred to as the "disposition of removal") against the Plaintiff on the ground of 228 square meters 359 square meters (hereinafter referred to as "the building in this case") on the ground of the non-permission temporary buildings of Mapo-gu Seoul Metropolitan Government 228-1, Mapo-gu, Seoul Metropolitan Government (hereinafter referred to as "the building in this case") is not disputed between the parties, and it is also recognized based on the evidence No. 1 (self-regradation), No. 1 (self-regradation), No. 1 (self-regradation), and No. 2 ( Map) without dispute over the establishment.
(2) On the ground that the instant building was an illegal building constructed by the Plaintiff without permission, the Plaintiff’s attorney asserted that the instant disposition was legitimate for its removal, and the Plaintiff’s attorney cannot be deemed as an illegal building because the said building was merely a walking, and even if it was an illegal building, it does not go against the public interest, and thus, the instant disposition of the instant order was unlawful.
Therefore, according to Gap evidence Nos. 2 (Standing Market Establishment Permit), Eul evidence Nos. 3 (Building Management Book No. 4), Eul evidence Nos. 8 (Administrative Appeal Decision), and the whole purport of pleadings as a result of verification conducted by the principal members of the building, the plaintiff operated a conventional market at 1849 square meters in Mapo-gu Seoul Metropolitan Government, and constructed a modern-type market at 418.5 square meters in the above land and at 418.5 square meters in height, the plaintiff's construction of a new-type building at 1,000 square meters in front or in 2,000 square meters in front or in 3,000 square meters in the above building and constructed a new-type building at 1,000 square meters in front or in 4,000 square meters in front or in 1.2 through 7,0000 square meters in the above building. The plaintiff's construction of a new-type building at 2,000 square meters in front or in 3,000 square meters in front.
However, according to Article 2 of the Administrative Vicarious Execution Act, even if a building is illegal, it shall be permitted only when the person ordered to remove the building fails to perform the duty of removal and fails to perform such duty, and it is deemed that the failure is very detrimental to the public interest.
Therefore, as seen above, since most of the buildings of this case were constructed at the height of the first floor of the market building, as seen above, most of the buildings of this case are constructed at the back of the market building except for some aspects, it seems to adversely affect the urban landscape and the residential environment, and the two sides of the market building of this case are adjacent to the road, and the site of the building of this case is not likely to be used as a passage as the land within the market border area, and thus it is not likely to obstruct the flow flow (However, if the market building operated by the plaintiff is not secured by the legal annexed parking lot, the administrative agency should secure it in accordance with the provisions of Article 19-4 of the Parking Lot Act, and it is not directly related to the construction of the building of this case and the securing of the annexed parking lot of this case, that is, the building of this case is the building of this case, and its site cannot be used as
In addition, Article 98 (1) of the Enforcement Decree of the Building Act provides that the building-to-land ratio, etc. shall not apply to the solar facilities, while Article 98 (1) of the Enforcement Decree of the Building Act provides that the building-to-land ratio, etc. shall not be first impossible to construct the building in this case.
Thus, considering the overall circumstances above, the Plaintiff’s construction of the instant building without the permission of the competent authority cannot be deemed to seriously undermine the public interest solely on the ground that the Plaintiff constructed the instant building without the removal of the instant building, and thus, the instant disposition is an illegal disposition that did not meet the requirements under Article 2 of the Administrative Vicarious Execution Act.
(3) Therefore, since the Defendant’s disposition of the instant order was unlawful, the Plaintiff’s claim of this case seeking its revocation is reasonable, and the costs of lawsuit are assessed against the Defendant as the losing party. It is so decided as per Disposition.
Judges Lee Jae-won (Presiding Judge)