[1] In a case where an administrative agency can realize the performance of the duty of alternative act, such as removal of a building, by means of administrative vicarious execution, whether it can seek the performance of such duty by means of civil procedure (negative), and in a case where the possessor of a building is the person liable to remove the building, whether the enforcement title ordering a separate removal is necessary (negative

[2] Whether an administrative agency may take measures incidental to the removal of a building in the course of the vicarious execution of removal of the building (affirmative), and in such a case, whether a police assistance may be assisted (affirmative)

[1] In a case where an administrative agency can realize the performance of the duty of alternative act, such as removal of a building by means of administrative vicarious execution, due to the recognition of the procedures for administrative vicarious execution under the relevant Acts and subordinate statutes, the said duty cannot be claimed separately by means of civil procedure. On the other hand, if the possessor of a building is the person liable for removal, the duty of removal of the building includes the duty of removal

[2] Where an administrative agency can realize the performance of the duty to remove a building by vicarious administrative execution, the agency may take measures incidental to the removal of the building in the course of vicarious administrative execution, and where the possessor interferes with the exercise of legitimate vicarious administrative execution by force, the obstruction of performance of official duties under the Criminal Act is established. Thus, if necessary, the government may be assisted by the police in order to prevent danger prevention measures based on the "Act on the Performance of Duties by Police Officers" or to arrest a flagrant offender.

[1] Article 2 of the Administrative Vicarious Execution Act / [2] Article 2 of the Administrative Vicarious Execution Act, Articles 5(1) and 6 of the Act on the Performance of Duties by Police Officers, Article 136(1) of the Criminal Act, Article 212 of the Criminal Procedure Act

[1] Supreme Court Decision 90Meu23448 Decided November 13, 1990 (Gong1991Sang, 87), Supreme Court Decision 99Da18909 Decided May 12, 200 (Gong2000Ha, 1390), Supreme Court Decision 2007Da75099 Decided December 24, 2008 / [2] Supreme Court Decision 2007Do7514 Decided April 28, 201 (Gong201Sang, 1076)

Sil Jin-si (Law Firm Busan, Attorneys Na-soo et al., Counsel for defendant-appellant)

Defendant 1 and one other

Daejeon District Court Decision 2015Na103478 Decided February 17, 2016

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. In a case where an administrative agency can realize the performance of the duty of alternative act, such as removal of a building by means of administrative vicarious execution, by recognizing the procedures for administrative vicarious execution under relevant Acts and subordinate statutes, the said duty cannot be claimed separately by means of civil procedure (see, e.g., Supreme Court Decisions 90Meu23448, Nov. 13, 1990; 99Da18909, May 12, 2000). Meanwhile, in a case where a possessor of a building is the person liable for removal, the duty of removal of the building includes the duty of removal of the building, and thus, it is unnecessary to separately order the removal of the building (see Supreme Court Decision 2007Da75099, Dec. 24, 2008).

Therefore, in cases where an administrative agency can realize the performance of the duty to remove a building by vicarious administrative execution, the administrative agency may take measures incidental to the removal of the building in the course of vicarious administrative execution, and in cases where the possessor interferes with the exercise of legitimate vicarious administrative execution by force, the obstruction of performance of official duties under the Criminal Act is established (see Supreme Court Decision 2007Do7514, Apr. 28, 201). If necessary, the police may be assisted in preventing danger prevention based on the Act on the Performance of Duties by Police Officers or in order to prevent crimes of obstruction of official duties under the Criminal Act or to arrest flagrant offenders.

2. Review of the reasoning of the lower judgment and the evidence duly admitted by the lower court reveals the following circumstances.

① On August 8, 2008, the head of Sigjin-Gun: (a) around two years from August 8, 2008 to August 7, 2010, set the permission period as “construction of a residential building” with respect to Defendant 1’s land line (location omitted) 630 square meters (hereinafter “instant public waters”); and (b) on the condition of permission, the head of Si/Gun set the permission period as “construction of a residential building” as “the construction of a residential building”; and (c) on the condition of permission, he/she temporarily uses the public waters for a limited period before completion of the difficult tourist guidance development project and moves after the removal of the building.”

② Defendant 1 completed a building report on September 4, 2008, and completed the registration of initial ownership on the instant public water surface on December 29, 2009 by constructing a light-weight structure and other single house of 197.72 square meters (hereinafter “instant building”). Defendant 1 completed the registration of initial ownership on the instant building on January 7, 2010.

③ On August 7, 2010, the period of occupation and use of public waters initially permitted was expired, and around that time, the head of Si/Gun issued an order to reinstate Defendant 1 pursuant to Article 12(1)2 and (3) of the former Public Waters Management Act (amended by Act No. 10272, Apr. 15, 2010).

④ Even though the difficult-to-face tourism development project was completed on April 21, 2010, Defendant 1 applied for permission to change the occupation and use of public waters in this case to the head of Si/Gun from July 2010, and on August 9, 2010, Jin-gun issued a disposition of refusal on the ground that “the permission to temporarily occupy and use public waters was granted before the completion of the initial difficult-to-face tourism development project, and the extension of the period is not allowed.” Defendant 1 filed an administrative litigation against this, but the dismissal ruling became final and conclusive on August 17, 2012.

⑤ On September 24, 2012, Defendant 1 donated 1/2 of the instant building to Defendant 2, his spouse, and completed the registration of ownership transfer.

④ On January 1, 2012, Jinjin-gun was on the top of the Jinjin-si, and on May 22, 2013, the Jinjin-gun notified Defendant 1 of the plan to conduct vicarious administrative execution pursuant to Article 2 of the Administrative Vicarious Execution Act if he/she fails to implement the previous order within the said period when he/she urged Defendant 1 to implement the order for restoration.

3. Examining these circumstances in light of the legal principles as seen earlier, the Defendants’ obligation to remove the instant building and restore the instant public waters to the original state constitutes an alternative duty of act, and thus becomes the subject of administrative vicarious execution. In the process of realizing the removal duty of the instant building by the method of administrative vicarious execution, the actual measures of the Defendants and their families incidental to the process of realizing the removal duty of the instant building by the method of administrative vicarious execution. Therefore, the enforcement title ordering the removal

In the same purport, the lower court was justifiable to have determined that the instant lawsuit seeking a withdrawal of a building against the Defendants was unlawful, and contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on the interest in a lawsuit or vicarious execution (see Supreme Court Decision 97Nu157, Oct. 23, 1998, which was invoked by the Plaintiff, is not pertaining to the removal of an unlawful building, but to the case where the disposition of dismissal of vicarious execution was taken in order to exclude possession of the counterparty from the legitimate building and to obtain the transfer of possession of the building, and thus, the principal purpose of the disposition was to realize the performance of the non-alternative act duty of delivery of the building, and thus, it cannot be subject to vicarious execution. Accordingly, it was clearly stated that the use in the instant

4. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin (Presiding Justice)