Magsung Co., Ltd.

Head of the Geum-gu Busan Metropolitan Government

June 26, 2009

Busan District Court Decision 2007Guhap4545 Decided August 28, 2008

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The defendant shall revoke the disposition imposing enforcement fines of KRW 22,761,00 against the plaintiff on June 26, 2007.

1. Details of the disposition;

The following facts are not disputed between the parties, or may be acknowledged by taking into account the whole purport of the pleadings in each entry of Gap evidence 1, Eul evidence 1, Eul evidence 2 and 3, Eul evidence 1 through 5, and Eul evidence 4 through 7:

A. The Plaintiff owned 183 square meters in Blu tank factories, 170 square meters in Blu tank factories, and 36 square meters in container warehouses (hereinafter “each of the instant buildings”) constructed on the ○○ Dong-dong (number omitted) in Busan Metropolitan City without obtaining a construction permit or filing a report, and used them as a workplace.

B. From 200 to 200, the Defendant issued a corrective order and an order to remove each of the instant buildings to the Plaintiff each year, and imposed a non-performance penalty on the Plaintiff. On November 23, 2006, the Defendant issued a corrective order to remove each of the instant buildings by December 4, 2006 [It is apparent that it is a clerical error in writing, as indicated in the “Correction Order for Illegal Buildings within Development Restriction Zones” (Evidence No. 5) sent by the Defendant to the Plaintiff, and by December 4, 2006, respectively.

C. As the Plaintiff failed to comply with the corrective order within the above period, on December 27, 2006, the Defendant again ordered the Plaintiff to remove each of the instant buildings by January 3, 2007, and issued a warning that the charge for compelling compliance should be imposed and collected if the Plaintiff fails to comply with the order, and on January 5, 2007, the Plaintiff did not remove each of the instant buildings within the above period, on the grounds that the period for payment was set as January 25, 2007, and imposed KRW 22,761,100 for compelling compliance (hereinafter “instant disposition”).

D. On June 26, 2007, the Plaintiff did not pay the enforcement fine. On July 15, 2007, the Defendant sent a “written notice of arrears and receipt” (hereinafter “instant notice of arrears”) to the effect that the Plaintiff urged the Plaintiff to pay the enforcement fine by July 15, 2007, and the Plaintiff received it around that time (hereinafter “instant notice”).

2. Summary of the plaintiff's assertion

The Plaintiff was served with the notice of default and was not served with the documents pertaining to the instant disposition. Since the Plaintiff already removed each of the instant buildings around the end of December 2006, prior to the instant disposition and the instant notice of default, the notice of default should be revoked in an unlawful manner.

3. Whether the lawsuit of this case is legitimate

A. We examine ex officio whether the instant notice of arrears seeking revocation by the instant lawsuit is an administrative disposition subject to appeal litigation.

(1) Comprehensively taking account of the overall purport of arguments in the statements in Eul evidence Nos. 7, 8, 10, and Eul evidence No. 12-1, and 2-2, the defendant sent to the plaintiff on January 8, 2007, "the notice of imposition of charges for compelling the performance of illegal buildings within a development-restricted zone" (hereinafter "the notice of imposition of charges for compelling the performance of a non-performance") along with the notice of payment for compelling the performance, which is a document stating the details of the disposition of this case, by a registered mail, and returned it. On April 3, 2007, the above documents were sent again by regular mail, and then sent to the plaintiff's principal office at that time. Accordingly, on April 23, 2007, the defendant submitted a written request for withdrawal of the disposition of this case to the defendant on April 23, 2007.

According to the above facts, the disposition of this case and its notice of payment were prepared in writing and delivered to the plaintiff before April 23, 2007. It is deemed that the disposition of this case and its notice of payment became effective lawfully.

Meanwhile, according to Article 69-2(6) of the former Building Act (wholly amended by Act No. 8974, Mar. 21, 2008; hereinafter the same), if a person subject to a disposition of imposing a non-performance penalty fails to pay the non-performance penalty within the given period, he/she shall collect it in the same manner as delinquent local taxes are collected. Thus, it is not necessary to impose a non-performance penalty in addition to the disposition of imposition and notice of payment.

Therefore, even if the defendant urged the plaintiff to pay the non-performance penalty again after the instant disposition and its notice of payment, this is merely a simple peremptory notice under the Civil Act demanding the payment of the non-performance penalty, and it does not change in the legal relationship on the imposition of the non-performance penalty, nor does it constitute a collection disposition which is a prerequisite for the disposition on default. Thus, the instant non-performance notice cannot be deemed an administrative disposition subject to appeal litigation.

(2) As to this, the Plaintiff knew that the Defendant could raise an objection within 60 days from the notice while making the instant notice, and the Plaintiff asserted that the instant lawsuit is lawful since the Plaintiff filed the instant lawsuit within 90 days from the filing period after filing the objection within the said period and receiving a notice from the Defendant that the objection is groundless.

살피건대, 갑제1, 2호증의 각 기재에 변론 전체의 취지를 종합하면, 피고가 2007. 6. 26. 원고에게 이 사건 체납고지를 하면서 발송한 이 사건 체납고지서에는 부동문자로 “◎ 이의신청 / ·개별법령에 규정되어 있는 경우에는 그 규정에 따라 이의신청을 할 수 있으며, 규정이 없는 기타 세외수입의 경우에는 지방자치법에 따라 고지서를 받은 날로부터 60일 이내에 이의신청을 할 수 있습니다.”라는 문구가 기재된 사실, 원고가 그 무렵 이 사건 체납고지서를 송달받은 후, 2007. 7. 27.경 피고에게 이 사건 각 건물을 이미 철거하였으므로 이행강제금 부과는 취소되어야 한다는 취지의 ‘이행강제금 부과처분에 대한 이의신청서’를 제출하였으나, 2007. 8. 초순경 피고로부터 이행강제금 부과는 적법하여 취소될 수 없다는 취지의 회신을 받은 사실이 인정된다.

On the other hand, in full view of the purport of the argument in the evidence No. 7 of this case, the defendant's written disposition of this case, which was sent to the plaintiff, can be acknowledged that "if there is an objection against the above disposition, a request for a trial under the Administrative Appeals Act may be filed within 90 days from the date on which the disposition was known, and within 180 days from the date of the disposition, a request for an administrative trial may be filed, and (b) under the Administrative Litigation Act, a lawsuit may be filed within 90 days from the date on which the disposition was known, and within one year from the date on which the disposition was made, the notice of arrears of this case may be recognized as having not been stated in the notice of administrative appeal or administrative litigation, other than the phrase on the objection as above.

In addition, even if the former Building Act and subordinate statutes are examined, there is no ground to believe that an objection to the collection of enforcement fines has the same effect as the administrative appeal.

Thus, only the above phrase written in the notice of arrears of this case alone is that the procedure of “Objection” notified by the Defendant to the Plaintiff constitutes an administrative appeal as a procedure of the administrative litigation seeking revocation of the notice of arrears of this case, or that the notice of arrears of this case does not have the nature of disposition subject to appeal. Thus, the Plaintiff’s assertion is without merit.

(3) Therefore, the instant lawsuit seeking revocation is unlawful on the premise that the instant notice of arrears falls under an administrative disposition subject to an appeal litigation.

B. Even if the instant lawsuit also contains the purport of seeking revocation of the instant disposition, such a claim is unlawful on the grounds as delineated below.

(1) According to Article 20(1) of the Administrative Litigation Act, a revocation lawsuit shall be filed within 90 days from the date when the party becomes aware of the disposition. Here, "the date when the party becomes aware of the disposition" means the date when the party becomes aware of the fact that the disposition was made by means of notice, public notice, or other methods (see Supreme Court Decision 2005Du14851, Apr. 28, 2006).

According to the facts acknowledged earlier, the instant disposition, stating the contents of the instant disposition, was sent by regular mail to the Plaintiff on April 3, 2007, and was served to the Plaintiff’s principal office at that time. On April 23, 2007, the Plaintiff submitted a written request to the Defendant to withdraw the instant disposition and request the Defendant to withdraw the instant disposition, so it is reasonable to deem that the Plaintiff became aware of the instant disposition until April 23, 2007.

However, according to the records, it is recognized that the lawsuit of this case was filed on November 2, 2007, after the 90-day period from the lawsuit of this case elapsed.

(2) Meanwhile, according to Article 20(1) and (3) of the Administrative Litigation Act as to whether the plaintiff's filing of the lawsuit in this case after the lapse of the filing period as above, since the above 90-day filing period is a peremptory term, it may supplement the litigation only where the party cannot comply with the 90-day filing period due to any cause not attributable to him under Article 173(1) of the Civil Procedure Act, which is applicable mutatis mutandis under Article 8 of the same Act, within two weeks from the date such cause ceases to exist. Here, "reasons not attributable to the party" refers to the reason why the party could not comply with the 90-day filing period despite the party's exercise of due care to conduct the litigation (see Supreme Court Decision 2004Du9951, Jan. 13, 2005).

However, according to the facts acknowledged above, since the period of filing a lawsuit under Article 20 (1) of the Administrative Litigation Act is specified in the written disposition of this case, which the defendant sent to the plaintiff while imposing the tax of this case, in light of this point, the plaintiff received the notice of this case, which was merely demanding the payment of enforcement fines pursuant to the disposition of this case from the defendant, and received a reply to the effect that it is impossible to cancel the imposition of enforcement fines after filing an objection with the defendant according to the notice, and then filed the lawsuit of this case within 90 days thereafter, such circumstance alone is difficult to view that the plaintiff's failure to file the lawsuit of this case within the 90-day period from the date when the plaintiff became aware of the disposition of this case, was caused by any cause for which

(3) Therefore, the Plaintiff’s seeking revocation of the instant disposition by the instant lawsuit is unlawful after the lapse of the filing period.

3. Conclusion

If so, the lawsuit of this case is unlawful and dismissed. However, the judgment of the court of first instance is just with this conclusion, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Yoon Jin-man (Presiding Judge) Kim Jong-hee