In a case where: (a) a person holding a sectional ownership of a primary complex commercial building Gap leased the part of his/her apartment floor to Eul to install partitions and lighting facilities; and (b) the head of the competent Gu issued a corrective order to Gap and imposed a non-performance penalty on Gap on the ground that the above commercial building part which is a sales and neighboring living facility under the Building Act was used for the purpose of changing the use of the above commercial building to he/she was an amusement facility, the case holding that the disposition of enforcement penalty was lawful.

In a case where a person holding the right to use the main commercial building Gap leased the part of the commercial building owned by him to Eul and installed partitions and lighting facilities in the middle floor to Eul, and the head of the competent Gu issued a corrective order to Gap and imposed a non-performance penalty on Gap on the ground that the above part of the commercial building, which is a sales and neighboring living facility, was changed to use as a amusement facility, without permission, and used as a amusement facility, under the Building Act, the head of the competent Gu issued a corrective order to Eul and imposed a non-performance penalty, the case holding that the permission to use the building may issue a corrective order to the owner even though the person who used the building without permission changed the use without permission, and the disposition with the content of imposing a non-performance penalty without vicarious execution by force for the construction of the illegal building, cannot be deemed illegal on the ground that the change of use of the building can be deemed illegal, and in light of the fact that Gap who received the corrective order twice has not corrected the violation until the grace period for which the disposition of non-performance penalty was postponed, and the amount of non-performance penalty is calculated in accordance with relevant statutes.

Articles 19(2)1 and (4), 79(1), and 80(1) of the Building Act; Article 14(5) of the Enforcement Decree of the Building Act

Plaintiff

The head of Jeonju City/Gu

March 20, 2012

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant’s disposition of imposition of penalty surcharge of KRW 1,622,00 against the Plaintiff on October 19, 201 and penalty surcharge of KRW 1,622,00 is revoked.

1. Details of the disposition;

A. The main commercial building for the purpose of the use of the underground floor, the sales facilities of the fifth floor above ground (market), apartment houses, neighborhood living facilities, and the main complex commercial building for the purpose of business facilities is constructed on the lots outside of the 64th floor in the Tae-gu, Tae-gu, Tae-si, Tae-si, Tae-dong, Tae-si, the Jeon-si, the Jeon-si, and the 1st and the second floor above are concentrated by 800 commercial buildings (hereinafter the above market is referred to as the “○○ market”).

B. The Plaintiff is a sectional owner of the area of 26.6 square meters in total, among the instant ○○○○ market (hereinafter “instant building part”). On November 2010, the Plaintiff leased the instant building part to the Nonparty as KRW 80,000 per month until December 201, and KRW 100,000 per month until December 201, by setting that the instant building part was a car without a deposit for lease.

C. After the Nonparty leased the instant building, the Nonparty: (a) installed partitions and lighting facilities in the ceiling on the ground floor; and (b) opened a dance hall with the trade name of “△△△○○○ Market Co., Ltd.” for the elderly from 1 p.m. to 5 p.m. as major customers; (c) operated a dance hall from 1 p.m. to 5 p.m.; and (d) received KRW 1,000,000 as admission fees only at the end of the week (the instant dance is installed on the ground of 812m2m. among the branch floors of the instant ○○○○○ Market Co., Ltd.; and (b) 28 persons among the sectional owners

D. The Defendant discovered that the use of the instant building was originally sold or neighborhood living facilities under the Building Act, but was used without permission for the purpose of changing the use of call text, which is a amusement facility. On February 24, 2011, the Defendant issued a corrective order to the Plaintiff on April 5, 201 to the effect that the period for payment was expired and the removal and reinstatement was completed, but the Plaintiff failed to comply with the corrective order. On April 11, 2011, the Defendant issued a corrective order again to the Plaintiff on May 11, 201, with the period for payment. However, the Plaintiff failed to comply with the order.

E. Accordingly, on June 2, 2011, the Defendant notified the Plaintiff of the disposition imposing a non-performance penalty, and requested the Plaintiff to delay the imposition of the non-performance penalty by September 30, 201, requesting the Defendant to take measures to rectify the violation, and thus, the disposition imposing the non-performance penalty was postponed until September 30, 201, but the grace period was not corrected even by the above grace period. On October 19, 201, the Defendant imposed the Plaintiff KRW 1,62,00 for the non-performance penalty (Evidence 2) pursuant to Article 80 of the Building Act (the notice (Evidence 2) sent by the Defendant to the Plaintiff, stating that the subject is “the penalty and the non-performance penalty,” but the legal nature of the notice is stipulated as “the non-performance penalty under the Building Act, and it is below the enforcement penalty.”

[Basis] Facts without dispute, Gap evidence 1, 2, 3, Eul evidence 1-1 to 4, Eul evidence 2 through 6, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The Plaintiff leased the part of the instant building to the Nonparty, but the Nonparty installed partitions and lighting facilities on the part of the instant building and changed the use of the instant building without permission. The Plaintiff, so far, demanded the Nonparty to remove the partitions and lighting facilities, etc. to correct the violation of the Building Act several times, but the Nonparty failed to comply therewith. However, if the Plaintiff removes the partitions and lighting facilities against the Nonparty’s will, it may be subject to criminal punishment by arbitrarily disposing of another’s property, and thus, the Plaintiff may not directly remove the instant building. Accordingly, the instant disposition against which the enforcement fine was imposed on the Plaintiff on the ground that it failed to comply with the corrective order is unlawful.

2) Notwithstanding the fact that the Defendant could voluntarily correct the violation of the part of the instant building by using administrative vicarious execution, the instant disposition that was made without taking all such procedures is unlawful.

3) The Plaintiff is a wife who was unable to receive monthly rent from the Nonparty, and rather, it is too harsh to impose KRW 1,622,00 as a charge for compelling the performance, and thus, the instant disposition is unlawful as it violates the principle of proportionality.

B. Relevant statutes

[Attachment] The entry in the relevant statutes is as follows.

C. Determination

1) As to the allegation that the disposition of this case against the Plaintiff, not the lessee, was unlawful

According to Article 19(2)1 and (4), Article 79(1), and Article 80(1) of the Building Act and Article 14(5) of the Enforcement Decree of the Building Act, a person who intends to change the purpose of use of sales and neighborhood living facilities to amusement facilities shall obtain permission from the permitting authority, including the head of the competent Si/Gun/Gu. The permitting authority may issue a corrective order to the owner, contractor, on-site manager, owner, manager, or occupant of the building, the use of which has been changed without permission, such as removal of the building. After receiving the corrective order of the building, the owner, contractor, on-site manager, on-site manager, manager, manager, or occupant who fails to comply with the corrective order within the corrective period, shall impose a non-performance penalty under Article 80(1) of the Building Act. Thus, the permitting authority may issue a corrective order to the owner even if the person is not the owner who has changed the purpose of use without permission, and thus, the Plaintiff’s disposition of this case is without merit.

2) As to the allegation that the instant disposition was unlawful without going through the vicarious execution

On the other hand, a vicarious execution and a non-performance penalty are recognized as a means of compelling the performance of an illegal building under the Building Act. Since both systems are each head and unit of each system, administrative agencies may selective use of vicarious execution and a non-performance penalty by taking into account the violation of the act of violation, intent of correction of the offender, etc. in individual cases (see Constitutional Court en banc Order 2001HunBa80, 84, 102, 103, 202Hun-Ba26, Feb. 26, 2004). Thus, the disposition of this case cannot be deemed unlawful solely on the ground that the Defendant issued the disposition of this case involving the imposition of a non-performance penalty without carrying out vicarious execution by force. Accordingly, the Plaintiff’s assertion on this part is without merit.

3) As to the assertion of violation of the principle of proportionality

As seen earlier, the Plaintiff did not comply with any corrective order issued by the Defendant on two occasions with respect to the violation of the Building Act on the instant building. In full view of the following: (a) the Defendant accepted the Plaintiff’s request after prior notice of imposition of enforcement fines; and (b) the Defendant still did not correct the violation despite the suspension of imposition of enforcement fines by September 30, 201; and (c) the enforcement fines imposed by the Defendant on the Plaintiff are calculated pursuant to Article 80(1)2 of the Building Act; (b) Article 115-2(1) [Attachment Table 15] subparagraph 1-2 of the Enforcement Decree of the same Act; and Article 115-2(1) [Attachment Table 15] of the Local Tax Act and Article 4(2) of the Enforcement Decree of the same Act (i) 610,00 square meters x 26.6 square meters x 26.6 square meters x 10/100,000 won x x 10/100,000).

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

[Attachment] Relevant Statutes: omitted

Judges Kim Jong-k (Presiding Judge)