[1] Whether the content and scope of the act of vicarious execution should be specified only by the certificate of vicarious execution (negative)

[2] The case affirming the judgment below holding that the building is not a legitimate building solely on the ground that a factory is registered for an illegal building and a property tax is paid

[3] The requirements for the disposition of removing buildings by proxy, and the responsibility for assertion and proof

[4] The case affirming the judgment of the court below that the removal, guidance, and disposition on the illegally altered structure of a building is unlawful

[1] The contents and scope of the act of vicarious execution should be specified in the administrative agency's order of vicarious execution pursuant to Article 3 (1) of the Administrative Vicarious Execution Act, but the contents and scope of the act of vicarious execution should not be specified only by a written order of vicarious execution. The contents and scope of the act of vicarious execution should be specified in full view of the documents or other circumstances delivered before and after the order of vicarious execution, or by comparing and comparing the indication of the contents of the act of vicarious execution and the location, structure, reputation, etc. of the actual building so that the person liable for vicarious execution can know the scope of the obligation of vicarious execution

[2] The case affirming the judgment below which held that even if illegal buildings are registered under the Industrial Placement and Factory Construction Act and the property tax was paid under the Local Tax Act, the illegal buildings are not changed to a legitimate building under the Building Act

[3] Even if a building has been constructed in violation of the Building Act and thus, is obligated to remove, it shall be permitted only when it is difficult to secure the performance by any other means and it is deemed that the failure to perform is extremely detrimental to the public interest. The assertion and burden of proof as to such requirements is the administrative agency in charge of disposition.

[4] The case affirming the judgment of the court below holding that, since the portion of a building illegally modified among buildings is considerably significant compared to the necessity of public interest to maintain the degree of disadvantage caused by its restoration to its original state in light of the overall circumstances, or to protect the interests of a third party, a vicarious performance disposition on the part of the building is an unlawful disposition beyond the scope of discretion.

[1] Article 3 of the Administrative Vicarious Execution Act / [2] Article 3 of the Administrative Vicarious Execution Act, Article 5 of the Building Act / [3] Article 3 of the Administrative Vicarious Execution Act, Article 126 of the Civil Procedure Act / [4] Article 3

[1] Supreme Court Decision 89Nu4543 delivered on January 25, 1990 (Gong1990, 561), Supreme Court Decision 91Nu13564 delivered on June 12, 1992 (Gong1992, 2162), Supreme Court Decision 94Nu514 delivered on October 28, 1994 (Gong1994Ha, 3142) / [2] Supreme Court Decision 89Nu862 delivered on June 26, 1990 (Gong190, 1606), Supreme Court Decision 89Nu8156 delivered on August 28, 190 (Gong1990, 2030) / [3] Supreme Court Decision 90Nu1983989 delivered on July 12, 1983 (Gong199389, Nov. 36, 1989) / [1989

Plaintiff

(Attorney Jeon-young, Counsel for defendant-appellee)

Seoul High Court Decision 95Gu3116 delivered on May 9, 1996

All appeals are dismissed. The costs of appeal are assessed against each appellant.

1. We examine the Plaintiff’s grounds of appeal.

A. In the disposition of vicarious execution under Article 3(1) of the Administrative Vicarious Execution Act, the contents and scope of the act of vicarious execution should be specified in the case where the obligor fails to perform it by himself, but the contents and scope of the act of vicarious execution should not be specified only by the written request for vicarious execution. The contents and scope of the act of vicarious execution should be specified in full view of the documents or other circumstances served before and after the disposition of the order, or by comparing and comparing the indication of the contents of the act, or the location, structure, balance, etc. of the actual building, and it is sufficient for the obligor to know the scope of the obligation of vicarious execution (see Supreme Court Decisions 91Nu13564 delivered on June 12, 192, 94Nu514 delivered on October 28, 1994, etc.).

According to the facts duly established by the court below and the records, although the area of the building indicated as the object of the instant order disposition is different from the actual area, in light of the previous and previous circumstances, the Defendant's order in the instant order clearly identified the contents and scope of the act of vicarious execution, and thus, the Plaintiff, the obligor of vicarious execution, could sufficiently know the contents and scope of the duty of vicarious execution. Thus, the instant order in the instant case cannot be said to be specified in detail.

The judgment of the court below to the same purport is just, and there is no error of law that affected the conclusion of the judgment due to a mistake of facts against the rules of evidence.

B. The lower court determined that even if the instant building was registered under the Industrial Placement and Factory Construction Act and the property tax was paid under the Local Tax Act, such circumstance alone does not change the illegal building to a legitimate building under the Building Act, and there is no evidence to acknowledge that the Defendant imposed the property tax on the premise that the instant building was not changed to a legitimate building under the Building Act, or that the Defendant cultivated the instant building as a legitimate building

In light of the records, the above judgment of the court below is fully acceptable (see, e.g., Supreme Court Decisions 89Nu862, Jun. 26, 1990; 89Nu8156, Aug. 28, 1990; 89Nu8156, etc.). The above judgment below contains the purport that the defendant cannot be deemed to have formed the building of this case or allowed to newly construct, extend, or rebuild the building of this case explicitly. Thus, the judgment of the court below does not contain any error of law that affected the conclusion of the judgment by mistake of facts such as the theory of lawsuit.

C. Examining the reasoning of the judgment below in light of the records, the judgment of the court below on the fact that the theory of lawsuit points out (the fact that the dismissal disposition of this case was taken under the status of non-performance of conditions, and that the dismissal disposition of this case is unlawful as it loses equity) is all acceptable, and it cannot be said that there was an error of misconception of facts against the rules of evidence, such as the theory of lawsuit, by misunderstanding of facts against the rules of evidence, such as the selection of evidences and the recognition of facts, which are the exclusive authority of the court below. Ultimately,

D. Since part of the building in this case was constructed on the site 67-2 and 3 of the Gyeonggi-do Seoul Special Metropolitan City, Gyeonggi-do, the Gyeonggi-do Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City.

E. This is with the theory that even if a building has been constructed in violation of the Building Act and is obliged to remove, it shall be permitted only in cases where it is difficult to secure the performance by any other means and it is deemed that the non-performance is extremely detrimental to the public interest, and the assertion and burden of proof of such requirements shall be deemed as having the disposition administrative agency (see Supreme Court Decision 92Nu1690 delivered on September 14, 1993).

However, as determined by the court below, the size and purpose of the building newly constructed and expanded without permission in this case, its use, location, size, and in particular, the Plaintiff was accused of violating the Building Act on April 1, 1994 and received a summary order of KRW 2,00,000 from the Defendant on June 22 of the same year and did not restore the building to its original state, and rather, neglected the illegal building part which was constructed without permission (including alteration of the purpose of use) solely on the grounds of the theory, such as the small theory, the Plaintiff’s failure to implement the removal or alteration of use of the building in this case cannot be deemed as seriously impairing the public interest. In light of the fact that, in light of the fact that if the illegal building constructed without permission (including alteration of the purpose of use) is left alone, it would endanger the smooth execution of the construction administration by nullifying the authority regulating the illegal building, and it would not prevent in advance the removal or alteration of use of the building in this case from being implemented.

In the same purport, the court below is just to determine that the order of this case on the part of the building in the building in this case satisfies the requirements prescribed in the Administrative Vicarious Execution Act, and there is no error of law by misunderstanding legal principles as to the theory of lawsuit, violation of precedents, or misconception of facts against the rules of evidence

2. We examine the defendant's grounds of appeal.

In light of the overall circumstances as stated in the judgment below, the court below held that the building part of the building of this case, which was illegally modified, is considerably larger than the necessity of public interest or for protecting interests of a third party, and thus, the building part of this case is an illegal disposition beyond the scope of discretionary power. In light of the records, the above determination of the court below is justified (see Supreme Court Decision 88Nu1193 delivered on July 11, 1989). The above determination of the court below does not err by misapprehending the legal principles as to the measure of an unlawful building, such as the theory of lawsuit, since the court below did not err by misapprehending the legal principles as to the measure of an unlawful building.

3. Therefore, all appeals are dismissed, and the costs of appeal are assessed against each losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Chocheon-sung (Presiding Justice)