[1] Whether a charge for compelling the performance may be imposed on an act of changing the use of a building within a development restriction zone in violation of the Building Act (affirmative)

[2] The case holding that the enforcement fine under Article 83 of the former Building Act is lawful in a case where a person, without reporting to the competent authority, uses an animal or plant-related facility 246 square meters in a development restriction zone as a warehouse without permission, and did not comply with an order of correction on the ground that Article 11 of the Act on Special Measures for Designation and Management of Development Restriction Zones and Articles 9 and 14 of the former Building Act are violated and used by extending 57 square meters in a development restriction zone without permission

[1] Article 11 of the former Act on Special Measures for Designation and Management of Development Restriction Zones (amended by Act No. 7595 of Jul. 13, 2005); Article 83 of the former Building Act (amended by Act No. 7696 of Nov. 8, 2005) / [2] Article 11 of the former Act on Special Measures for Designation and Management of Development Restriction Zones (amended by Act No. 7595 of Jul. 13, 2005), Articles 9, 14, and 83 of the former Building Act (amended by Act No. 7696 of Nov. 8, 2005)

[1] Supreme Court Order 2005Ma850 dated May 30, 2006

Appellant (Law Firm continental, Attorneys No Sang-soo et al., Counsel for the plaintiff-appellant)

Uibu District Court Order 2006Ra68 dated April 27, 2007

The reappeal is dismissed.

The grounds of reappeal are examined.

The former Act on Special Measures for Designation and Management of Development Restriction Zones (amended by Act No. 7595, Jul. 13, 2005; hereinafter “former Act”) applies not only to the alteration of use of a building located within a development restriction zone, but also to the Building Act. The competent administrative agency may issue a corrective order pursuant to Article 69(1) of the Building Act. If a corrective order is violated, the enforcement fine may be imposed pursuant to Article 83 of the former Building Act (amended by Act No. 7696, Nov. 8, 2005; hereinafter “former Building Act”). (See Supreme Court Order 2005Ma850, May 30, 2006, etc.).

According to the records of this case, the re-appellant used the animal and plant-related facilities of this case 246 square meters in a development restriction zone without reporting to the competent authority without permission, while using 57 square meters without permission for extension from the Namyang market to use it as a warehouse, and did not comply with the corrective order within a given period on the ground that he violated the provisions of Article 11 of the former Special Measures Act and Articles 9 and 14 of the former Building Act from the Namyang market. Thus, according to Article 14 (3) 6 of the former Building Act and Article 14 (4) of the former Enforcement Decree of the Building Act, animal and plant-related facilities belong to "other facility group" and warehouse facilities belong to "industrial facility group" and they differ in facility group from each other. Thus, in order to use animal and plant-related facilities as a warehouse, it is necessary to report to the competent authority.

Examining the decision of the court below in light of the above legal principles, it is just that the court below maintained the decision of the court of first instance, which is at least 10,000,00 won for non-performance penalty, by applying Articles 83(1) and 69(1) of the former Building Act, and there is no violation of the Constitution, Act, order, or rule that affected the judgment, as alleged in the grounds for reappeal.

Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)