(a) Article 3 of the Administrative Vicarious Execution Act and the requirements of Article 2 of the same Act;

B. The case holding that there was an error of incomplete deliberation or lack of reason in finding the cancellation of the disposition of mooring without examining and determining whether the neglect of an unauthorized building in the land zone subject to the adjustment of land partitioning causes damage to the public interest by depthing the time limit for the adjustment of land partitioning.

(a) The requirement for vicarious execution provided for in Article 2 of the Administrative Vicarious Execution Act shall be the requirement for an appeal under Article 3 of the same Act;

(b) The case holding that there was an error of incomplete deliberation or insufficient reasoning in the original judgment which declared the revocation of the disposition of the height of the building located in the land partition rearrangement zone;

Article 2 of the Administrative Vicarious Execution Act, Article 3 of the Administrative Vicarious Execution Act, Article 5 of the Building Act, Article 42 of the Building Act, Article 30 of the Urban Planning Act, Article 35 of the Urban Planning Act

Mannam-Wil

Seoul Metropolitan Government

Seoul High Court Decision 63Gu246 delivered on April 28, 1964

We reverse the original judgment.

The case is remanded to Seoul High Court.

The reason is that Article 2 of the Administrative Vicarious Execution Act provides that if a person liable to perform an act by direct order or by an order issued by an administrative agency under the Act fails to perform the act, if it is difficult to secure the implementation as another means, and if it is deemed that leaving the failure to perform the act is very detrimental to the public interest, it shall be interpreted as a requirement for the guidance under Article 3 of the same Act. This is because the guidance of vicarious execution is clear by the purport of Articles 2 and 3 of the Administrative Vicarious Execution Act, which is recognized as part of a series of procedures of compulsory execution, such as vicarious execution. Therefore, it is reasonable to interpret that the requirements of vicarious execution under Article 2 of the same Act are reasonable even about the dismissal that is part of the procedure of vicarious execution, and that it may be guidance when the requirements are met.

However, in light of the reasoning of the judgment below, it is justified on the ground that the requirements for vicarious execution stipulated in Article 2 of the Administrative Vicarious Execution Act were justified on the ground that the above mentioned reasoning was well-founded even in the case issued under Article 3 of the same Act. However, in this case, the court below asserted that the defendant's disposal of this case was unlawful on the ground that the defendant's failure to perform his duty of removal of this building under Articles 5, 42 of the Building Act, Articles 30 and 35 of the Urban Planning Act, and the defendant's assertion that the procedure for vicarious execution was not a procedure for failing to perform his duty, but the failure to leave this building does not cause serious harm to the public interest, and that it is difficult for the defendant to secure the performance of removal as another means, or that there is no other circumstance to recognize that leaving this building does not cause serious harm to the public interest, even if examining the record in detail, it cannot be found that the defendant's failure to leave the building was not a serious harm to the public interest.

The facts duly determined by the court below should have deliberated upon whether the building was located in the zone subject to the Seoul Mapo-gu Land Partition and that the building was constructed without permission. Thus, in the event that the building removal order was neglected without implementing the building removal order and the land partition, which is the urban planning project, could not be completed by the prescribed time limit, the failure would result in extremely undermining the public interest, unless there are special reasons, and thus, it would result in extreme harm to the public interest, even though the court below should have judged when and when the time limit for the rearrangement of the land in question should be the time limit for the rearrangement of the land in question, and decided that the cancellation of the first order disposition would not result in a serious harm to the public interest, and therefore, the court below declared that the cancellation of the first order disposition would not result in a serious damage to the public interest. Therefore, the appeal by the defendant-appellant pointing out the above error in the original judgment is justifiable.

Therefore, the original judgment is reversed, and it is so decided as per Disposition by the assent of all participating Justices.

Justices Han Sung-dong (Presiding Judge) of the Supreme Court