2012Guhap3324 Revocation of attachment disposition

Park 00

Japan Mamamagul

Law Firm Samok, Counsel for the plaintiff-appellant

Attorney Kim Ba-young

Head of Suwon-gu Busan Metropolitan City

Litigation performer Kim○-○

November 15, 2012

December 20, 2012

1. The Defendant’s imposition of enforcement fines of KRW 6,143,750 as of March 22, 201 against the Plaintiff and KRW 5,469,830 as of March 27, 201, respectively, is invalid.

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

The primary purport of claims is as stated in paragraph (1) of this Article.

Preliminary claim: Each disposition of imposition stated in paragraph (1) shall be revoked.

1. Details of the disposition;

A. On April 23, 2010, the Plaintiff: (a) at the auction on a voluntary auction of 5,690 square meters of woodland 0-00, Suwon-dong, Busan-dong (hereinafter “instant land”); and (b) on May 13, 2010, the Plaintiff completed the registration of ownership transfer on the instant land. On January 28, 2011, the Defendant did not impose a corrective order on the Plaintiff pursuant to Article 79 of the former Building Act (amended by Act No. 10755, May 30, 201; hereinafter the same shall apply); (b) 4 Dong-dong, container (ware), 2 Dong-dong, 2 Dong-dong, Suwon-dong, Busan-dong, 00 (hereinafter “instant land”); and (c) the Plaintiff did not impose a corrective order on the Plaintiff on the ground that it would remove the instant building by no later than February 28, 2011 (hereinafter “the instant building”).

C. On February 7, 2012, the Defendant issued a corrective order again to the Plaintiff by March 11, 2012 (hereinafter “instant corrective order”), and on March 27, 2012, on the ground that the Plaintiff failed to comply with the said corrective order, the Defendant imposed KRW 5,469,830 (hereinafter “disposition for imposition of enforcement fines for non-performance penalty for non-performance”) on the Plaintiff (hereinafter “Disposition for imposition of enforcement fines for non-performance penalty for non-performance”).

[Ground of recognition] Facts without dispute, Gap evidence 2, Eul evidence Nos. 5 through 7 (including paper numbers; hereinafter the same shall apply), the purport of the whole pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Claim regarding a tax payment notice

As the Plaintiff did not receive a tax notice on the instant disposition, the instant disposition is null and void.

2) The assertion regarding the corrective order

The Defendant did not issue a corrective order under Article 80(1) of the Building Act to the Plaintiff, and immediately imposed a non-performance penalty on the Plaintiff, and did not hold a hearing thereon, the instant disposition is unlawful.

3) The plaintiff is not the owner of the building of this case

The plaintiff did not construct the building of this case, and only acquired only the land of this case by auction, and did not acquire or possess the building of this case on the ground.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

Any administrative disposition that requires notification to the other party shall take effect only when it is notified to the other party, and if such administrative disposition is not notified to the other party, it shall be null and void as it does not take effect.

However, according to Article 80(3) of the former Building Act, where a permitting authority, such as construction, imposes a non-performance penalty under paragraph (1) of the same Article, he/she shall do so in writing, specifying the amount, reason for imposition, payment deadline, receiving agency, method of raising an objection, raising an objection, etc. Meanwhile, pursuant to Article 14(1) and (4) of the former Administrative Procedures Act (amended by Act No. 11498, Oct. 22, 2012), the service of a written administrative disposition, etc. shall, in principle, be made the domicile, address, business office, or e-mail address of a person who is served by means of mail or information and communications network use (hereinafter “location, etc.”). In cases where the address, etc. of the person receiving the service cannot be confirmed by ordinary means, or where it is impossible to serve, a public notice may be made by publication on one or more daily newspapers on the Official Gazette so that the person receiving the service can easily understand, and Article 16(2) of the Administrative Procedures Act shall also be determined by means of mail or communications.

살피건대, 갑 제2호증, 을 제9, 10호증의 각 기재 및 변론 전체의 취지에 의하면 원고는 재일교포로서 일본에 거주하고 있는 사실, 이 사건 토지에 대한 부동산등기부에는 원고의 주소가 '일본국 야마구찌켄 ○○시 ○○○○'로 기재되어있는 사실, 피고는 이 사건 토지의 소재지인 '부산 수영구 ○○동 산○○번지 ○○호'로 제1, 2 시정명령 및 이행강제금의 처분서를 송부한 사실, 피고가 2012. 2. 8. 보낸 제2 시정명령에 대한 시정명령서는 폐문부재 및 이사불명으로 송달되지 않았고, 2012. 3. 28. 보낸 제2 이행강제금 부과처분에 대한 이행강제금 부과 알림은 수취인부재로 송달되지 않은 사실이 인정된다.

According to the above facts, although the defendant could have known the domicile of the plaintiff in Japan through the real estate registration book, he sent a written disposition on the disposition of this case to the location of the land of this case rather than the plaintiff's domicile. Since the location of the land owned by the plaintiff cannot be seen as an address, etc. under Article 14 (1) of the Administrative Procedures Act, it cannot be deemed that the disposition of this case was legally delivered to

Therefore, the disposition of this case is null and void since its external effect takes effect (On the other hand, there is no evidence to acknowledge that the plaintiff was the owner of an illegal building, etc. subject to enforcement fines, etc. at the time of the disposition of this case, and in full view of the overall purport of pleadings in the evidence Nos. 2, 3, and No. 1, the building of this case was constructed around 2002, and the plaintiff was awarded a successful bid only for the land of this case in the Busan District Court's Dong branch on April 23, 2010 in the real estate rental auction case around 2009, Busan District Court's 2009, and the building of this case is not included in the above auction. As long as the land and the building on the ground are separate ownership, it cannot be deemed that the plaintiff is the owner or possessor of the building of this case, etc., and thus, the disposition of this case is unlawful in this regard).

3. Conclusion

If so, the plaintiff's primary claim is reasonable, and it is decided as per Disposition (as the plaintiff's primary claim is accepted, it shall not be judged any additional claim).

The presiding judge, the Korean Judge;

Judges Yoon Jin-jin

Judge Hwang-man