Whether the head of the Gu can take measures against illegal buildings, etc. prescribed in Article 42 of the Building Act

According to Article 4 (2) of the Building Act and the main sentence of Article 4 (1) of the Enforcement Decree of the Accompanying Enforcement Decree, the authority that can be delegated to the head of the Gu by the Mayor of the Seoul Special Metropolitan City, the Mayor of the Busan Metropolitan City, and the head of the Si having the Gu is limited to the permission for construction prescribed by Article 5 of the Building Act, or to the receipt of reports on extension and reconstruction within 10 square meters of the annual area, and the authority on the measures for the violation of Article 42 of the Building Act is not delegated.

Articles 4, 5, and 42 of the Building Act, Article 5 of the Enforcement Decree of the Building Act

Plaintiff

The head of Dongdaemun-gu

The removal and mooring disposition against the plaintiff on September 7, 1970 against the plaintiff on the ground of 33-9 of Dongdaemun-gu Seoul Dongdaemun-gu, Dongdaemun-gu shall be revoked.

Litigation costs shall be borne by the defendant.

The same shall apply to the order.

The fact that the defendant against the plaintiff on September 7, 1970 that he made a disposition of entry in the order in accordance with the provisions of Article 42 of the Building Act and Articles 2 and 3 (1) of the Administrative Vicarious Execution Act is not a dispute between the parties.

Therefore, it is examined whether the head of the Gu has the authority to take measures against illegal buildings, etc. under Article 42 of the Building Act. According to Article 4(2) of the Building Act and the main text of Article 4(1) of the Enforcement Decree of the same Act, the authority delegated by the Mayor of the Seoul Special Metropolitan City, the Mayor of the Si having the jurisdiction over the head of the Si having the jurisdiction over the head of the Gu is limited to the permission of construction as prescribed in Article 5, or the receipt of reports on extension and reconstruction within 10 square meters in total floor area, and there is no authority to take measures against illegal buildings, etc. under Article 42 of the Building Act.

Therefore, it cannot be said that the defendant has the authority to do so.

Thus, the disposition of the instant order issued by the head of the Gu based on Article 42 of the Building Act is unlawful as long as a person without authority is an administrative disposition, and it is not necessary to determine the remaining point of view. Therefore, the plaintiff's claim seeking its revocation is justified, and the costs of lawsuit are assessed against the losing party.

Judges Sick-su (Presiding Judge)