The case holding that the removal and removal disposition of an unauthorized building is justifiable;

In a case where a temporary building is reported and a temporary building is continuously controlled by the competent authority even after the lapse of the retention period, and the construction of a temporary building which is not a temporary building is completed, even though it was possible to correct the violation part, if it was lawfully constructed, it would have been possible to obtain an extension of retention period, and the competent authority would have received an extension of retention period if it was legally constructed, and the maintenance period would not have any problem by accepting the commencement period, and issuing a structural corrective order, and as a result, a large construction cost was put into the construction of the building, and the structural safety and hygiene are limited to the aesthetic improvement of the road. Even though there was no fire prevention and sanitary impairment, if it is left alone, the authority regulating the illegal building would endanger the smooth execution of the construction administration by nullifying the capacity of the building. It would be more likely to seriously undermine the public interest, and thus, the above disposal is unlawful in that it would not seriously undermine the legal order and order as well as undermine the public interest.

Articles 42 and 47(2) of the Building Act, Article 2 of the Administrative Vicarious Execution Act

Supreme Court Decision 87Nu714 Decided December 13, 198

Plaintiff

Head of the Gu of Busan Metropolitan City;

Busan High Court Decision 88Gu1264 delivered on January 6, 1989

The case shall be reversed and remanded to Busan High Court.

As to the Grounds of Appeal:

1. The court below rejected the defendant's main defense against the non-existence of a disposition for removal of a temporary building for which the plaintiff seeks cancellation in this case refers to the removal of an unauthorized building and removal and removal and removal of an unauthorized building which is an issue in this case. If so, it is clear that there is an administrative disposition for which the plaintiff seeks removal, and there is no error in the misapprehension of legal principles such as the theory of lawsuit. There is no reason to discuss this issue.

2. According to the reasoning of the judgment below, if the plaintiff appeared to have been on October 10, 1985, 197 Paragraph (2) of the Building Act, and the temporary building under Article 32 Paragraph (1) Item 4 of the Enforcement Rule of the Building Act is a temporary building on the land of this case and its retention period is from October 25, 1985 to October 24, 1986, and the construction should have been commenced only on April 15, 1988, after the expiration of the retention period of the building, after submitting the report to the effect that the temporary building under Article 32 Paragraph (1) of the Building Act was not constructed on the building of this case. The court below found that the temporary building under Article 32 Paragraph (1) of the Enforcement Rule of the Building Act was not constructed on the building of this case, and that the building under construction of this case was not constructed on the building of this case, and even after the expiration of its construction period, the plaintiff had been notified of the temporary removal order under the same Article 16th order without permission.

However, as seen in this case, if an illegal building constructed without permission is left alone merely on the ground as seen above, the competence of the authority regulating illegal building would disarm and endanger the smooth execution of construction administration. At the time of permission and completion inspection under the Act, it would be likely to undermine the greater public interest to prevent in advance the harmony with neighboring buildings such as fire-fighting systems, parking facilities, traffic flow, building-to-land ratio for the proper living environment protection, usage rate and other restrictive provisions under the Building Act (see Supreme Court Decision 87Nu714, Dec. 13, 198). Furthermore, in this case, the Plaintiff was continuously controlled by the Defendant from the beginning of construction at the beginning of construction, but at the end, the Plaintiff’s failure to neglect the building in this case would seriously distort the administrative purpose and its direction. Therefore, leaving the building in this case would not significantly undermine the public interest in this respect.

Nevertheless, as seen earlier, the lower court determined that even if the building of this case was not removed and neglected as it is, it cannot be deemed that the public interest would be significantly harmed. In so doing, the lower court erred by misapprehending the legal doctrine as to the requirements for mooring the order, and thus, it is reasonable to point out this issue.

3. Therefore, the original judgment shall be reversed, and the case shall be remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Sang-won (Presiding Justice)