2015Gudan56192 Revocation of Disposition of Imposing Charges for Compelling Construction

A

The head of Jung-gu Seoul Metropolitan Government

June 23, 2016

July 21, 2016

1. On March 5, 2015, the Defendant’s imposition of enforcement fines exceeding KRW 7,502,480 among the imposition of enforcement fines of KRW 195,064,480 against the Plaintiff, and the imposition of enforcement fines of KRW 27,769,215 among the imposition of enforcement fines of KRW 39,49,580, and the imposition of enforcement fines of KRW 27,769,215, and the imposition of enforcement fines of KRW 114,95,920, respectively, shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. Of the litigation costs, 20% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

The Defendant’s imposition of a non-performance penalty amounting to KRW 195,064,480, KRW 399,49,580, KRW 114,995,920, KRW 76,785,660 against the Plaintiff on March 5, 2015 shall be revoked, respectively.

1. Details of the disposition;

A. The Plaintiff owned a building on the ground of B, C, and 5 lots above, D, E, and two lots below (in the following, 1, 2, 3, 4, and 4, 5 lots above ground buildings in Seoul Jung-gu, Junggu, Seoul, and 2, 3, E, and 2, and 4, respectively).

B. The Plaintiff was granted a building permit for the target 1, 2, and 3 buildings with factory facilities and swimming pool facilities as follows, but leased to F Co., Ltd. (F Co., Ltd.) for use as warehouse facilities. Since the construction of each building, no approval for use was obtained from the competent authority after the construction of the building, and no building register was made. The Plaintiff obtained approval for use for the purpose of cultural assembly facilities after the construction of the building.

C. On March 5, 2015, the Defendant imposed indemnity on the Plaintiff for the following reasons.

A person shall be appointed.

[Ground of recognition] Facts without dispute, Gap evidence 1, Eul evidence 1 to 15, and the purport of whole pleadings

2. Determination on the legitimacy of the disposition

A. The plaintiff's assertion

(1) Although the Defendant imposed a charge for compelling the performance on the buildings concerned 1, 2, and 3 due to the unauthorized change of the purpose of use and prior occupancy, it cannot impose a charge for compelling the performance on the buildings for which the approval for use under Article 22 of the Building Act has not been granted, and even if the Plaintiff violated Article 16 of the Building Act by using each of the buildings for any purpose other than the original purpose of use for which the construction permit was granted, there is no ground to impose a charge for compelling the performance. Furthermore, the Defendant applied the rate equivalent to 50% of the standard market price based on Article 80(1)1 of the Building Act, but Article 80(1)1 of the Building Act is not applicable to the construction act lawfully permitted, as the Plaintiff planned to do the construction act without permission or report.

(2) The slope of the building in question 1 and 2 is installed at will by the representative G of the non-party company, the lessee, and is not responsible to the Plaintiff, the owner. The form of the building also falls under the “building” under the Building Act, which is a mobile facility with wheels, and is a wheel for the protection of goods.

(3) The charge for compelling the performance on the ground of the unauthorized change in the use of the target 4 buildings was set excessively.

B. Relevant statutes

It is as shown in the attached Form.

(c) basic facts;

(1) the subject one building

(A) On May 2008, the Plaintiff newly constructed one building on the ground B in Jung-gu, Seoul with the approval of the establishment of a factory by the Defendant and leased it to the non-party company as warehouse.

(B) On May 15, 2014, the Defendant issued a corrective order ordering correction thereof up to June 20, 2014, on the grounds that (i) a factory facility was modified to a warehouse facility without permission (violation of permitted matters); (ii) a factory was occupied before obtaining approval for use; and (iii) a ground-story warehouse was extended to approximately 300 square meters without permission.

As the above corrective order was not served as a closed door absence, it was served by public notice on the bulletin board or website from May 29, 2014 to June 13, 2014. The Defendant issued a second corrective order on June 30, 2014, but was not served due to the absence of a closed door, thereby serving by public notice on the bulletin board or website from July 11, 2014 to July 28, 2014.

(C) On November 27, 2014, the Defendant gave notice that the enforcement fine of KRW 399,49,580 should be imposed if the Plaintiff did not take corrective measures by December 12, 2014, on the ground that the Plaintiff violated Articles 16 and 22 of the Building Act. The notice of imposition also was served through service by public notice due to the absence of closure.

(D) On March 5, 2015, the Defendant issued the instant disposition imposing KRW 399,49,580 for enforcement fines by public notice, and the specific grounds for calculation are as follows.

506,000 x 1,469 x 0.02 (Prior Occupancy) = 14,869,215 won

86,000 square meters 】 300 square meters 】 0.5 (Unauthorized expansion) = 12,90,000 won

506,000 x 0.5 (Violation of Building Permits) = 371,730,370

(2) the target 2 buildings

(A) On December 24, 2010, the Plaintiff constructed a general steel structure in the size of 216 meters of the total floor area and a steel pipe sports facility (outward pool) on the land outside C and five lots outside Seoul, Jung-gu, Seoul, and leased the building to the non-party company as warehouse.

(B) On May 15, 2014, the Defendant issued a corrective order ordering correction thereof up to June 20, 2014, on the grounds that (i) a sports facility was modified without permission (violation of permitted matters) to warehouse facilities; (ii) a person occupied before obtaining approval for use; and (iii) a person who occupied the 1,340 square meters of a 1st floor warehouse facilities on the ground without permission.

As the mix of corrective titles is not served as a closed door, service by public announcement was made on the bulletin board or on the website from May 29, 2014 to June 13, 2014. The Defendant issued a corrective order again on June 30, 2014, but did not serve as a closed door, and served by public announcement on the bulletin board or on the website from July 11, 2014 to July 28, 2014.

(C) On November 27, 2014, the Defendant notified that the enforcement fine of KRW 114,995,920 should be imposed if the Plaintiff did not take corrective measures by December 12, 2014, on the ground that the Plaintiff violated Articles 16 and 22 of the Building Act. The notice of imposition also was served through service by public notice.

(D) On March 5, 2015, the Defendant issued the instant disposition imposing KRW 399,49,580 for enforcement fines by public notice, and the specific grounds for calculation are as follows.

91,000 square meters ¡¿ 1,340 square meters ¡¿ 0.5 (Unauthorized expansion) = 60,970,000 won

481,000 won x 216 square meters 】 0.02 (Advance occupancy) = 2,077,920 won

481,000 square meters ¡¿ 216 square meters ¡¿ 0.5 (Violation of Building Permits) = 51,948,000

(3) As to the building in question 3

(A) On December 28, 2010, the Plaintiff newly constructed a general steel-frame facility with a total floor area of 764 square meters on the D’s ground in Jung-gu, Seoul, and leased the building to the Nonparty Company as warehouse facilities, etc.

(B) On May 15, 2014, the Defendant: (a) changed a sports facility to warehouse facilities without permission (violation of permitted matters); and (b) issued a corrective order to correct it until June 20, 2014 on the ground that the Defendant occupied the facility before obtaining approval for use; (b) the said corrective order was issued by means of public announcement on the bulletin board or Internet homepage from May 29, 2014 to June 13, 2014.

On June 30, 2014, the Defendant issued a second corrective order, but was not served as a closed door, and thus was served by public notice on the bulletin board and website from July 11, 2014 to July 28, 2014.

(C) On November 27, 2014, the Defendant notified that the enforcement fine of KRW 195,064,480 should be imposed if the Plaintiff did not take corrective measures by December 12, 2014, on the ground that the Plaintiff violated Articles 16 and 22 of the Building Act. The notice of imposition also was served through service by public notice.

(D) On March 5, 2015, the Defendant issued the instant disposition imposing KRW 195,064,480 for enforcement fines by public notice, and the specific grounds for calculation are as follows.

491,000 won ¡¿ 764 ¡¿ 0.02 (Prior Occupancy) = 7,502,480 won

491,000 won ¡¿ 764 ¡¿ 0.5 (Violation of Building Permission) = 187,562,00 won

(4) As to the building at issue 4

(A) The Plaintiff newly built 4 buildings subject to permission for construction of general steel-frame culture and assembly facilities (the museum) on the ground of the 1,469 square meters of the total floor area on the land outside Seoul Jung-gu E and two lots. After completion of the building, the Plaintiff obtained approval for use on May 17, 2012. The Plaintiff leased the said building to the non-party company as warehouse facilities.

(B) On May 15, 2014, the Defendant issued a corrective order ordering the correction of sports facilities by June 20, 2014, on the ground that the use of the sports facilities was changed to warehouse facilities without permission. The said corrective order was issued by means of public announcement on the bulletin board or Internet homepage from May 29, 2014 to June 13, 2014, since it was not served due to a closed door door door door absence.

On June 30, 2014, the Defendant issued a second corrective order, but was not served as a closed door, and thus was served by public notice on the bulletin board and website from July 11, 2014 to July 28, 2014.

(C) On November 27, 2014, the Defendant made an advance notice that if the Plaintiff did not take corrective measures by December 12, 2014, it would impose a charge for compelling the performance of KRW 76,785,660 on the ground that the Plaintiff violated Article 19 of the Building Act. The notice of imposition was served through service by public notice.

(D) On March 5, 2015, the Defendant issued the instant disposition imposing enforcement fines of KRW 76,785,660 by public notice, and the specific grounds for calculation are as follows.

512,00 won x 1,499.72 square meters x 0.1 (Unauthorized change of use) = 76,785,660 won

[Ground of recognition] Facts without dispute, Gap evidence 1, Eul evidence 1 to 15, and the purport of whole pleadings

D. Determination

(1) Disposition imposing a non-performance penalty on the ground of a violation of the permitted matters of the building 1 to 3

(A) As seen earlier, the Defendant imposed a non-performance penalty on the subject 1, 2, and 3 buildings on the ground that they were used as warehouse facilities, unlike the original purpose of permission, but the Plaintiff did not obtain approval for use of each of the above buildings from the Defendant. Since the alteration of the purpose of use regulated by Article 19 of the Building Act is based on the premise of approval for use stipulated in Article 22 of the same Act, the Defendant cannot impose a non-performance penalty on the subject 1, 2, and 3 buildings without obtaining approval for use.

(B) The Defendant asserts that the grounds for the imposition of the instant charge for compelling compliance are Article 16 of the Building Act. Article 16(1) of the Building Act provides that a project owner shall obtain permission from the competent permitting authority or report to the Special Self-Governing City Mayor, Special Do Governor, or the head of a Si/Gun/Gu before changing the matters permitted or reported under Article 11 or 14, as prescribed by Presidential Decree, but the Plaintiff did not follow such procedures and thus, the disposition imposing the charge

However, Article 80(1) of the Building Act, which provides for enforcement fines for a violation of the Building Act, provides that where a building is constructed in excess of the building-to-land ratio or the floor area ratio under Articles 55 and 56 of the Building Act, the amount equivalent to 50% of the standard market price for the extended area shall be imposed as enforcement fines for the violation of Article 11, 14 (1) 2 of the Building Act, and Article 16 of the Building Act provides that the enforcement fines for the violation of Article 16 of the Building Act shall be imposed within the limit of 10% of the market price mark. Article 80(2) of the Enforcement Decree of the Building Act, which provides for enforcement fines for the violation of Article 80(1)2 of the Building Act, provides for the imposition of enforcement fines for the violation of Article 11, 16 (1) of the Building Act, which is a non-performance fines for the violation of Article 16 (1) of the Building Act, without any permission or a report, for the purpose of use of Article 16 (2) of the Building Act.

(C) The Defendant asserted that the approval for provisional use was obtained for the three buildings subject to the approval. Thus, according to the evidence No. 17, the Plaintiff’s approval for provisional use is acknowledged as having been obtained from the Defendant on April 30, 2012 on the above building. The temporary approval for use is valid only for a maximum of two years, and it does not constitute the approval for use under Article 22 of the Building Act, on the ground that the temporary approval for use was granted for the completed portion of the construction without completion of the construction. Accordingly, this part of the allegation is without merit.

(D) Therefore, the imposition of a non-performance penalty on the ground of alteration of the purpose of use (violation of permitted matters) on the subject 1 through 3 buildings is unlawful.

(2) Imposition of enforcement fines on the ground of change of purpose of use on the target 4 buildings

After the plaintiff obtained approval for use of the target 4 building for the purpose of cultural and assembly facilities, the fact that the non-party company is allowed to use it for the purpose of the factory and warehouse facilities is also recognized. According to the evidence Nos. 19 and No. 20, it is recognized that the plaintiff used all of the facilities approved for use as warehouse facilities. Thus, it is legitimate to impose enforcement fines of KRW 76,785,60 according to the ratio of 10% of the standard market price of the area of violation in accordance with Article 80 (1) 2 of the Building Act and Article 115-2 (2) of the Enforcement Decree of the same Act.

(3) As to the unauthorized Extension of the Building 1 and 2

(A) The Plaintiff leased each of the instant buildings to the non-party company and claimed that the non-party company could not impose enforcement fines on the facilities installed without permission against the Plaintiff’s intent. However, each of the above provisions of the Building Act related to corrective orders and imposition of enforcement fines on the non-party building is to improve the safety and function of the building and the aesthetic view of the building, thereby promoting public welfare. Although the owner directly causes, or does not participate in, the illegal state of the building, the Plaintiff may issue a corrective order to the owner (see, e.g., Supreme Court Decisions 98Du5972, May 26, 2000; 2012Du20137, Sept. 13, 2013). Furthermore, sanctions, such as imposition of enforcement fines, are imposed on the non-party company’s facilities installed without permission against the Plaintiff’s intent, based on the objective fact that it violates administrative laws and regulations, and thus, the Plaintiff’s assertion is without merit, even if the actual actor is imposed on the person responsible under the law and regulations.

(B) The Plaintiff asserts that the equipment extended to each of the above buildings is a mobile facility with the wheels of the Bridge, and therefore cannot be deemed as a building. Article 2(1)2 of the Building Act provides that “building” has a roof, columns, or walls among the structures settled on the land, and facilities attached thereto. Here, “a structure settled on the land” does not necessarily mean only a structure fixed on the land that is impossible to move, but it is not easy to move separately from the land in a common way, and the attached condition is not easy to move, and its original purpose should be settled for a considerable period of time, and it also includes cases where it appears (see, e.g., Supreme Court Decision 91Do945, Jun. 11, 1991).

In light of the above legal principles, the facilities of this case constitute the "building" under the Building Act, which is acknowledged in light of the following facts and circumstances acknowledged by comprehensively considering the following facts and the overall purport of the statements, images, and pleadings set forth in subparagraphs 18 through 28 of Article 18.

The facilities installed on the ground of the Jung-gu Seoul Metropolitan Government shall be installed with a steel frame, etc. on the ground with a size of 300 square meters, which is 300 square meters, and a roof is covered by the roof. The ground facilities outside Seoul Jung-gu C, Jung-gu, Seoul, and five lots of land outside Seoul are also 1,340 square meters and a steel structure installed on the ground, and a roof is covered by a steel frame pole and a string, and all of them are fixed on the ground with a V.

Even if it is physically possible to separate the land or facilities of this case from the main building, in light of the above structure and form, a considerable number of columns are fixed or buried on the concrete floor, and the size of the underground facilities outside Jung-gu C and five lots of land is 1,340 square meters, it is deemed that considerable effort and cost will be required to remove them.

Although the time of the establishment of the instant facility is unclear, the Plaintiff was notified from April 23, 2014 to remove each of the instant facilities several times by the Defendant, and even if the instant disposition was issued, the Plaintiff did not take measures against this up to two years (the Defendant issued a disposition imposing enforcement fines on the same ground even on December 23, 2015).

○ The Plaintiff was determined through the Seoul Administrative Court Decision 2013Gudan177666 decided that it cannot be deemed a building as a movable property with wheels affixed to the pole. Since the Defendant’s withdrawal of the appeal became final and conclusive, it cannot be deemed a building. However, the instant non-foresting facilities cannot be deemed a building. However, the said facilities cannot be deemed as the same as the instant facilities, which were located on the ground of 4,810 square meters of H forest land in Jung-gu, Seoul.

(3) Sub-determination

The legitimate amount of enforcement fines to be imposed on each building of this case is as follows.

A person shall be appointed.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified within the above scope of recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges Song Bo-young

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.