The case holding that it is unlawful to issue a corrective order on the ground that repair to increase the number of households in the multi-family house can not be seen as "large-scale repair" under the former Building Act by means of extending it without dismantling the partitions wall, which is the main structural part of the building, and to impose a non-performance penalty, on the ground that permission was not granted.

The case holding that it is unlawful to regard the above building as an unlawful building and issue a corrective order and impose a non-performance penalty on it on the ground that the repair activity increased the number of households in the multi-family house by means of extending it without dismantling the partitions wall, which is the main structural part of the building, does not constitute "large-scale repair activity" under Article 2 (1) 10 of the former Building Act (amended by Act No. 7696 of Nov. 8, 2005) and Article 3-2 subparagraph 8 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 19466 of May 8, 2006).

Articles 2(1)10 and 8(1) of the former Building Act (amended by Act No. 7696 of Nov. 8, 2005), Article 3-2 subparag. 8 of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 19466 of May 8, 2006)

Plaintiff, the taking-over of the lawsuit of Nonparty deceased

The head of Jung-gu Seoul Metropolitan Government

August 16, 2007

1. The Defendant’s disposition of imposition of KRW 7,432,680 against the Plaintiff on December 28, 2006 is revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Basic facts

A. A. Around September 26, 2003, Nonparty deceased newly constructed a building listed in the separate sheet (hereinafter “instant building”) and obtained approval for use. Around that time, Nonparty deceased installed a boundary wall inside the instant building consisting of a total of four households on the building ledger and changed one household of 1,2, and one household of 1,3 to a total of 14 households by 4 households on each floor (hereinafter “the instant repair act”). The above condition is maintained until the date of closing the argument of this case.

B. Although the act of increasing the number of households of the building of this case as above constitutes substantial repairs under Article 2(1)10 of the former Building Act (amended by Act No. 7696 of Nov. 8, 2005; hereinafter the same shall apply) and subparagraph 8 of Article 3-2 of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 19466 of May 8, 2006; hereinafter the same shall apply), the Defendant imposed a non-party’s charge for compelling the performance on the ground that the non-party deceased committed such act without permission of the competent government office (the non-party’s order of correction on September 11, 206; November 8, 2006; hereinafter the same shall apply); however, the Defendant imposed a non-party’s charge for compelling the performance [the non-party’s non-party’s non-party’s non-performance] on the ground that it violated Article 69-2(1)2 of the Building Act, subparagraph 15 of the Enforcement Decree [the non-party’s charge for compelling performance]

C. Nonparty 7,315,120 won enforcement fine on May 18, 2005 is imposed on the repair act of this case and the removal of landscaping (13.22 square meters).

D. Meanwhile, the deceased died on June 17, 2007, and the plaintiff, his leader, succeeded to the building of this case by agreement division.

[Grounds for Recognition] A.1-3, B.1-8 (including each number), the purport of the entire pleadings

2. Whether the disposition is lawful;

A. The parties' assertion

(1) The Plaintiff: The instant disposition that the Defendant imposed without granting a substantial period of implementation after having issued a single corrective order was procedurally unlawful, and the instant disposition is too disadvantageous to the Plaintiff than the public interest that would be achieved due to the instant disposition, and thus, there is an error of deviation from and abuse of discretion.

(2) Defendant: The instant repair act constitutes a large-scale repair under Article 3-2 subparagraph 8 of the former Enforcement Decree of the Building Act, and the instant disposition is lawful.

B. Relevant statutes

(1) The Building Act (amended by Act No. 7696 of Nov. 8, 2005 and enforced May 9, 2006)

Article 2 (Definitions)

(1) The definitions of terms used in this Act shall be as follows:

6. The term "main structural parts" means bearing walls, columns, floors, beams, roof trussess, and main stairs: Provided, That studs, the lowest floor, small beams, sun blinds, outdoor stairs, and other similar parts not essential to the structure of a building shall be excluded herefrom;

10. The term "large-scale repair" means repairing, altering, or extending the structure or external form of columns, beams, bearing walls, main stairs of a building, which is prescribed by Presidential Decree;

(1) Enforcement Decree of the Building Act (amended by Presidential Decree No. 19466 of May 8, 2006 and enforced May 9, 2006)

The term "those prescribed by Presidential Decree" in Article 2 (1) 10 of the Act means those falling under any of the following subparagraphs, which do not fall under extension, renovation or reconstruction:

8. Enlarging, dismantling, repairing or altering party walls between families and households of multi-family houses and multi-household houses.

(1) The former Building Act (amended by Act No. 7696 of Nov. 8, 2005)

Article 2 (Definitions)

(1) The definitions of terms used in this Act shall be as follows:

6. The term "main structural parts" means bearing walls, columns, floors, beams, roof trussess, and main stairs: Provided, That studs, the lowest floor, small beams, sun blinds, outdoor stairs, and other similar parts not essential to the structure of a building shall be excluded herefrom;

10. The term "large-scale repair" means any of the following repairs, as prescribed by Presidential Decree:

(a) Repair or alteration of any main structural parts of a building; and

(b) Alteration of the external form of a building;

Article 8 (Building Permits)

(1) A person who intends to construct or make a large-scale repair falling under any of the following subparagraphs shall obtain permission from the head of a Si/Gun/Gu: Provided, That where he/she intends to construct a building, etc. of at least 21 floors, the use and scale of which are prescribed by Presidential Decree, such as buildings, in the Special Metropolitan City or Metropolitan

1. A person who intends to construct or repair a building in an urban area and Class-II district unit planning zone designated by the National Land Planning and Utilization Act;

2. A person who desires to construct or repair a building on a large scale in a zone determined by the Presidential Decree;

3. A person who intends to construct or make a large-scale repair of a building with a total floor area of at least 200 square meters or with at least three floors (including where the total floor area of the relevant building is at least 200 square meters or becomes at least three floors due to such extension in cases of extension) in an area or zone other than the areas or zones under subparagraphs 1 and 2;

(1) Enforcement Decree of the former Building Act (amended by Presidential Decree No. 19466 of May 8, 2006)

The term "those prescribed by Presidential Decree" in the main sentence of Article 2 (1) 10 of the Act means those falling under any of the following subparagraphs, which do not fall under extension, renovation or reconstruction:

1. Repair or alteration by demolishing not less than 30§³ of a wall area of a bearing wall;

2. Repair or alteration by demolishing three or more pillars;

3. Repair or alteration by demolishing three or more beams;

4. Repair or alteration by demolishing three or more roof trusses;

5. Repair or alteration by demolishing floors or walls for fire walls, or fire zones;

6. Repair or alteration by demolishing main stairs, escape stairs or special escape stairs;

7. Alteration of the exterior form (including fences) of a building within an aesthetic zone; and

8. Repair or alteration of the party walls which are the main structural parts between families and households of the tenement house and multi-household house.

(1) Enforcement Decree of the former Building Act (amended by Presidential Decree No. 17926, Feb. 24, 2003)

The term "those prescribed by Presidential Decree" in the main sentence of Article 2 (1) 10 of the Act means those falling under any of the following subparagraphs, which do not fall under extension, renovation or reconstruction:

1. Repair or alteration by demolishing not less than 30§³ of a wall area of a bearing wall;

2. Repair or alteration by demolishing three or more pillars;

3. Repair or alteration by demolishing three or more beams;

4. Repair or alteration by demolishing three or more roof trusses;

5. Repair or alteration by demolishing floors or walls for fire walls, or fire zones;

6. Repair or alteration by demolishing main stairs, escape stairs or special escape stairs;

7. Alteration of the exterior form (including fences) of a building within an aesthetic zone; and

(c) Markets:

(1) In order for the instant repair to constitute a substantial repair subject to a building permit under Article 8(1) of the former Building Act, it should be recognized that the instant repair act constitutes a substantial repair, such as “repair or alteration of the main structural parts of a building” under Article 2(1)10 of the former Building Act, which was enforced at the time of the instant repair act, or “repair or alteration of the party walls, which are the main structural parts between households and households,” under Article 3-2 subparag. 8 of the former Enforcement Decree of the Building Act, and therefore, whether the instant repair act constitutes that.

(2) In a case where the main structural part of the building is to be dismantled to increase the number of households, it is difficult to view that the act of including the alteration of the main structural part of the previous building by the provisions of Article 3-2 subparagraph 1 of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 17926 of Feb. 24, 203) as including the alteration of the main structural part of the building by the boundary of the apartment house or multi-household house under the provisions of subparagraph 8 of Article 3-2 of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 17926 of the Building Act) as including the alteration of the main structural part of the apartment house or multi-household house under the provisions of Article 3-2 of the former Enforcement Decree of the Building Act as including the alteration of the main structural part of the building by the boundary of the apartment house or multi-household house under the provisions of Article 6 of the former Enforcement Decree of the Building Act as including the alteration of the main structural part of the building or the alteration of the main structural part of the building.

(3) As above, insofar as the instant repair cannot be deemed as falling under the act of substantial repair under Article 2(1)10 of the former Building Act and Article 3-2 subparag. 8 of the Enforcement Decree of the same Act, which is the law at the time of such act, it is unlawful for the Defendant to regard the instant building as an unlawful building and to issue a corrective order, and further impose a charge for compelling the performance, on the ground that the instant repair did not have permission for substantial repair under Article 8(1) of the former Building Act as to the instant repair.

3. Conclusion

Therefore, the plaintiff's claim seeking the revocation of the disposition of this case is reasonable, and it is so decided as per Disposition with the assent of all participating Justices.

[Attachment] List of Real Estate: omitted

Judges Jeong Jong-chul (Presiding Judge) (Presiding Judge)