[1] Whether the order or eviction of a building can be subject to a vicarious execution under the Administrative Vicarious Execution Act (negative), and whether the removal of retained articles can be subject to a vicarious execution independently (negative)

[2] The purport of Article 89 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects

[3] The case holding that in case where the operator of a national rental housing complex development project takes measures to correct administrative vicarious execution and collect expenses from the person residing in the project district, in case where he did not transfer or relocate the land, etc. within a certain period of time after the expropriation of the land incorporated into the project district and the above residential vinyl, the delivery of the residential vinyl and the removal of the materials retained in the project district cannot be subject to vicarious execution under the Administrative Vicarious Execution Act

[1] Administrative obligations under the Administrative Vicarious Execution Act that an administrative agency may secure under the provisions of the Administrative Vicarious Execution Act are limited to the obligation to act on behalf of another person, i.e., the obligation to act on behalf of another person. Even if the obligation to act is limited to the obligation to act on behalf of another person, it cannot be the object of vicarious execution. The removal of retained objects is an inevitable act accompanying the performance of the obligation to act on behalf of the person, and the removal of retained objects is an inevitable act accompanying the performance of the duty to act on behalf of the person, and it does not constitute the content of the obligation independently, so the vicarious execution on the name of the building or the removal

[2] Article 89 of the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor provides individual grounds for vicarious execution, and at the same time applies mutatis mutandis only to some requirements and procedures for vicarious execution under the Administrative Vicarious Execution Act. It does not purport to allow compulsory execution, in principle, to another kind of obligation that cannot be subject to vicarious execution, as it does not belong to the alternative duty of action.

[3] The case holding that, in case where the executor of a national rental housing complex development project takes measures to correct administrative vicarious execution and collect expenses from the person residing in the project district after the expropriation of the land incorporated in the project district and the above residential vinyl, where he did not transfer or relocate the land, etc. within a certain period of time, the above residential vinyl itself cannot be subject to vicarious execution under the Administrative Vicarious Execution Act, since the duty to deliver the above residential vinyl itself does not correspond to the duty to act as a substitute, and the duty to transfer the goods retained in the project is the necessary act accompanying the fulfillment of the duty to deliver the residential vinyl itself, and it cannot be subject to vicarious execution, since it does not constitute an independent duty.

[1] Article 2 of the Administrative Vicarious Execution Act / [2] Article 89 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects; Article 2 of the Administrative Vicarious Execution Act / [3] Article 89 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects; Article 2

[1] Supreme Court Decision 2004Da2809 decided Aug. 19, 2005 (Gong2005Ha, 1493)

Plaintiff 1 and 14 others (Attorney Lee Jae-jin, Counsel for the plaintiff-appellant)

Seoul Special Metropolitan City Mayor (Attorney Kim Sung-won, Counsel for defendant-appellant)

December 17, 2009

1. The defendant's disposition on July 23, 2009 against the plaintiffs for the delivery and transfer of each item as stated in the "type of goods" is revoked.

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

The same shall apply to the order.

1. Details of the disposition;

A. From January 1, 1986 to April 1995, the Plaintiffs were directors of the Seocho-gu Seoul Metropolitan Government Do-dong (hereinafter omitted), the Seocho-gu Do-dong (hereinafter referred to as the “Do-dong Do-dong Do-dong”) and the farming complex, and had been residing in each residential plastic house (hereinafter referred to as the “instant obstacles”) on the land indicated in the “number” column in the attached order, such as the entry in the “type of things” column.

B. E. E.S., an implementer of a national rental housing complex development project in the Seocho-gu, Seocho-gu, Seoul Metropolitan Government National Rental Housing Complex development project, who attempted to consult with the plaintiffs on the land and the obstacles of this case included in the project district but failed, and on February 13, 2009, applied for a ruling of expropriation to the Central Land Expropriation Committee on May 7, 2009, and commenced expropriation of the obstacles of this case as of June 30, 2009.

C. However, the plaintiffs did not take measures such as delivering the land and the obstacles of this case to EP and removing the goods owned by the plaintiffs to different places. On July 23, 2009, the defendant issued a disposition to the plaintiffs on July 23, 2009, pursuant to Articles 89 and 2 and 3 of the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (hereinafter "the Public Works Act") and Articles 2 and 3 of the Administrative Vicarious Execution Act, to voluntarily deliver the land owned by EP and the obstacles of this case until August 10, 2009, and to transfer the goods owned by the plaintiffs to another place. However, if the plaintiffs did not transfer or transfer them by the above date, it did not perform vicarious execution as prescribed by Article 89 of the Administrative Vicarious Execution Act and collect the expenses from the plaintiffs (hereinafter "the disposition in this case").

[Grounds for Recognition] Facts without dispute, Gap 1 through 6, 8 through 10 evidence, Eul 1 through 10 evidence (including each number), the purport of the whole pleadings and arguments

2. Whether the instant disposition is lawful

(a) Relevant statutes;

It is as shown in the attached Form.

B. Determination

Administrative obligations that can be secured by an administrative agency under the Administrative Vicarious Execution Act are limited to the obligation of another person to act on behalf of the other person, i.e., the obligation to act on behalf of the other person. Even if the obligation to act is limited to the obligation to act, it cannot be the object of vicarious execution. The removal of the retained object is an inevitable act accompanying the performance of the obligation to act on behalf of the other person, and the removal of the retained object is an inevitable act accompanying the performance of the obligation to act on behalf of the other person, and it does not itself form an independent obligation. Thus, the vicarious execution of the name of the building or the removal of the building is not permitted. (See Supreme Court Decision 95Nu1020 delivered on October 11, 1996).

In the case of this case, the plaintiffs' obligation to deliver the obstacles themselves does not constitute an alternative duty as to whether the direct exercise of force is necessary in the compulsory fulfillment of this obligation, and thus, it cannot be the object of vicarious execution under the Administrative Vicarious Execution Act, separate from the direct enforcement method. In addition, the obligation to transfer the obstacles themselves within the obstacles in this case is the necessary act accompanying the fulfillment of the obligation to deliver the obstacles in this case, and it does not constitute an independent obligation in itself.

On the other hand, Article 89 of the Public Works Act provides that "where a person liable to perform an obligation under this Act or any disposition made by this Act fails to perform, or is difficult to complete, such obligation within a fixed period, or where there exist any grounds to recognize that allowing him to perform such obligation is remarkably detrimental to the public interest, a project operator may apply for vicarious execution as prescribed by the Administrative Vicarious Execution Act to the Mayor/Do Governor or the head of a Si/Gun/Gu." However, the above provision is solely based on the purport of establishing individual provisions concerning vicarious execution and, at the same time, applying only some provisions concerning the requirements and procedures for vicarious execution under the Administrative Vicarious Execution Act. It does not purport to allow compulsory execution to other kinds of obligations that are not subject to vicarious execution as a matter of principle because they do not belong to the alternative duty to act (see Supreme Court Decision 2004Da2809, Aug. 19, 200, etc.).

Therefore, the instant disposition is unlawful as it is against the duty not to be subject to administrative vicarious execution.

3. Conclusion

Therefore, the plaintiffs' claim of this case is reasonable, and it is so decided as per Disposition.

[Attachment 1] Details of the guidance and disposition: omitted

[Attachment 2] Relevant Statutes: omitted

Judges Park Jong-dae (Presiding Judge)