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(영문) 대구고등법원 2018.05.11 2017누6342
건축이행강제금부과처분취소
Text

1. The plaintiff's appeal is dismissed.

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

The purport of the claim and appeal is the purport of the appeal.

Reasons

1. The reasoning of the court’s explanation concerning the instant case is as stated in the reasoning of the first instance judgment, except for modification or addition of a trial decision as follows. Thus, this is acceptable in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2. A corrected or added portion;

A. In Part 4, part 9 of the judgment of the court of first instance, “The appeal is currently pending in the appellate trial (the Daegu District Court 2016No4721)” is amended to mean “after that the appeal and appeal of the defendant (the plaintiff of this case) are all dismissed, the above criminal judgment became final and conclusive on November 14, 2017.”

(b) add the following judgments in the front part of “3. Conclusion” in the 8th sentence of the first instance court:

3) The Plaintiff asserts that, in light of the following facts: (a) the opening and closing glass window installed by the Plaintiff on the piloti portion is not a separate pole and roof; (b) it does not constitute a "large-scale repair" under Article 2(1)9 of the Building Act; (c) it does not constitute a "large-scale repair" under Article 115-2(2) [Attachment Table 15 and Mapo-si, Article 42(1) of the Enforcement Decree of the Building Act, only KRW 5,238,00 shall be imposed pursuant to Article 115-2(2) [Attachment Table 15 and Mapo-si, Article 42(1) of the Building Act; and (b) the part corresponding to the above large-scale repair is entirely removed by the Plaintiff’s removal at the additional request of a public official belonging to the Defendant on November 7

However, even if a civil or administrative judgment is not bound by the fact-finding in a criminal trial, the fact that a criminal judgment already finalized on the same factual basis is a flexible evidence, and thus, it is not difficult to adopt a judgment on the facts in the criminal trial in light of other evidence submitted in the civil or criminal trial unless there are special circumstances to the contrary.

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