[건물철거계고처분취소청구사건][고집1966특,473]
Requirements for measures taken as a premise for vicarious administrative execution.
The disposition of dismissal as an administrative vicarious execution can only be conducted when the obligor is deemed to be seriously detrimental to the public interest instead of being able to neglect the nonperformance in all cases where the obligor fails to comply with the order of the administrative agency.
Article 2 of the Administrative Vicarious Execution Act
Supreme Court Decision 66Nu127 delivered on January 31, 1967 (Supreme Court Decision 24Nu146 delivered on February 16, 1965, Supreme Court Decision 66Nu127 delivered on January 31, 1967 (Supreme Court Decision 281 delivered on July 281, 196, Supreme Court Decision 15Nu199 delivered on June 20, 200, Supreme Court Decision 2Da57 delivered on July 31, 200)
Plaintiff
The head of Yongsan-gu
1. The Defendant’s removal order issued by the Plaintiff as of November 8, 1965 with respect to the 0.53 square meters in the attached drawings (A) of the building of 251-25, Yongsan-gu, Seoul, and the apap 251-25 building of 0.53 square meters in the attached drawings (A) shall be revoked.
2. The costs of lawsuit shall be borne by the defendant.
The plaintiff sought a judgment as stated in the above disposition.
1. On October 25, 165, the plaintiff obtained permission to rebuild the building site Nos. 11 (Notice of Construction Permission), 12 (Report of Construction Permission), 5 (Report of Inspection), and 13-4 (No. 7-1; hereinafter the same shall apply) of the evidence No. 13-4 (No. 7) without dispute in its establishment, combined the contents of evidence No. 5-1 to No. 3 (Certified Copy of the register) and all the arguments alleged to have been established. On Oct. 25, 1965, the plaintiff continued to dispose of the above part of the building site No. 2425-18 (No. 25) with respect to the building site No. 251 (No. 15) with respect to the building site No. 2425) of Yongsan-gu, Seoul. 251 and the building No. 25 (No. 25) with respect to the building site No. 2465).
2. However, according to Article 2 of the Administrative Vicarious Execution Act, the dismissal disposition as a premise of administrative vicarious execution can only be done in all cases where the obligor fails to comply with the order of the administrative agency, not in all cases where it is deemed that the failure would seriously prejudice the public interest. In this case, according to the above evidence Nos. 13-4 (No. 7-2; hereinafter the same shall apply), the main verification result and the purport of oral argument, the above No. 249-32 square meters, which were invaded by the Plaintiff’s construction, are located north of the site of 251-18, which is owned by the Plaintiff, and extend to the west, and the part of the building prior to the reconstruction of this case was constructed by the owner of the above 251-18 unit, and the defendant's new fences were installed in each of the above buildings (the plaintiff's new fences were installed in each of the above 3-18 unit, which could not be seen to be part of the building's new fences.
3. If so, it is a separate issue that a person whose right is infringed by the plaintiff's building of this case, takes the procedure for remedy of right by private law. However, it cannot be said that the defendant lacks the requirements under Article 2 of the Administrative Vicarious Execution Act.
The defendant litigation performer asserts that the plaintiff did not report the commencement of construction in the reconstruction of the building of this case, and that the building is in violation of the Building Act by using the building without the completion inspection. However, the plaintiff's assertion is not justified.
4. Therefore, we decide to accept the Plaintiff’s principal claim seeking a revocation of the Defendant’s above-mentioned disposition, and decide as to the burden of litigation costs by applying Article 14 of the Administrative Litigation Act and Article 89 of the Civil Procedure Act to this case.
Judges Kim Do-ju (Presiding Judge)