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1. The Defendant’s imposition of KRW 27,783,740 of the enforcement fine against the Plaintiffs on May 27, 2016 is KRW 11,69,173.
Reasons
1. Details of the disposition;
A. The Plaintiffs are the owners of the five-story buildings above ground in Gangnam-gu Seoul Metropolitan Government.
B. On February 22, 2016, the Defendant discovered the fact that a multi-story structure (hereinafter “instant structure”) was installed in the area of 69 square meters in the underground floor of the instant building. On March 22, 2016, the Defendant ordered the Plaintiffs to remove the instant structure by setting the deadline for correction as of March 22, 2016, but the Plaintiffs failed to comply therewith.
C. Accordingly, on May 2, 2016, the Defendant issued an order for the removal of the instant structure on May 25, 2016, ordering the Plaintiffs to remove the instant structure, and issued an advance notice of non-performance penalty. On May 27, 2016, the Defendant issued a disposition imposing a non-performance penalty of KRW 27,783,740 (i.e., standard market price of the building per square meter x 805,320 x 0.5 x 69 square meters) pursuant to Article 80(1)1 of the Building Act (hereinafter “instant disposition”).
[Ground of recognition] No dispute, Gap evidence Nos. 1, 2, and 7, and the purport of the whole pleadings
2. Whether the disposition is lawful;
A. The gist of the Plaintiffs’ assertion 1) removed the instant structure on May 29, 2016, and received the instant notice of disposition on June 1, 2016. However, the enforcement fine under the Building Act constitutes an administrative indirect enforcement means that enforces future performance through psychological pressure, not a sanction against past violations, which is non-performance of a corrective order. Therefore, insofar as the Plaintiffs had already removed the instant structure before receiving the instant notice of disposition, the Defendant cannot impose enforcement fine on the Plaintiffs, and thus, the instant disposition is unlawful. (ii) Even if not, the enforcement fine on the instant structure under the Building Act and subordinate statutes ought to be KRW 11,69,173, as it is unlawful. Therefore, the instant disposition is unlawful.
B. Determination 1) The time to determine whether an administrative disposition is unlawful is at the time of such administrative disposition (Supreme Court Decision 10 March 11, 1980).