2013Nu1751 and revocation of disposition of imposing penalty surcharge for non-performance;

A

Attorney Lee Jae-hoon, Counsel for the plaintiff-appellant

The head of Dong-gu Busan Metropolitan City

Litigation Performers C

Busan District Court Decision 2012Guhap5627 Decided May 31, 2013

December 20, 2013

January 10, 2014

1. Revocation of a judgment of the first instance;

2. On November 13, 2012, the Defendant revoked the disposition imposing KRW 8,028,000 on the Plaintiff for compelling compliance.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. On August 2012, the Defendant issued a corrective order ordering the Plaintiff to reinstate, etc. on August 30, 2012 and October 14 of the same year on the ground that the Plaintiff newly constructed a block warehouse of 61.06 square meters (hereinafter “instant building”) on part of part of the 6,394 square meters of the Do-dong-gu Busan, Busan. However, the Defendant failed to comply with the order.

B. Accordingly, on October 29, 2012, the Defendant notified the Plaintiff of the prior disposition that enforcement fines shall be imposed KRW 8,028,000 for non-performance of the above corrective order, and imposed KRW 8,028,000 for enforcement fines on November 13, 201 of the same year (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1, Eul evidence 4-1 to 4, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The Defendant’s disposition of this case is deemed as the ground for disposition that the Plaintiff’s construction of the instant building constitutes an illegal new construction on or around July 2012 or around August of the same year. Since the act of repair of the instant building was only limited to the extent of substantial repair even if it is judged disadvantageous to the Plaintiff, the instant disposition made on the premise that the Plaintiff newly constructed the said building is unlawful.

2) Since the instant building was a real residential building and was used as a warehouse at the time of the instant disposition, even if the Defendant could impose a charge for compelling the performance on the Plaintiff, the instant building should comply with the proviso of Article 80(1) of the Building Act, and its disposition without applying the said provision is unlawful.

3) In addition, the Defendant issued a safety inspection of the instant building pursuant to Article 81(1) of the Building Act and issued an order to reconstruct or repair the instant building to the Plaintiff, but it is unlawful to execute the instant disposition without going through such procedure.

4) Even though a considerable number of buildings located in the Busan Dong-gu, Busan, where the instant building is located, improving the roof, imposing enforcement fines on the Plaintiff is contrary to equity.

B. Relevant statutes

Attached Form 3 is the same as each entry of the relevant laws and regulations.

C. Determination

1) The defendant's grounds for disposition

In full view of the overall purport of pleadings and arguments as to Gap evidence Nos. 1, 2, Eul evidence Nos. 1, 3-1 through 6, Eul evidence Nos. 4-1 through 4, the defendant, while issuing corrective orders, disposition prior notice, enforcement fines, etc. with respect to the disposition of this case, shall be deemed as "new axis"; " August 2012"; the building owner shall be deemed as "the plaintiff; the defendant calculated the amount of enforcement fines on the basis of the current base price of 2012 on the premise that the plaintiff's act constitutes a new construction without permission; thus, the defendant cannot be deemed as the defendant's new construction of new building or new construction of new construction of new building for the following reasons: the defendant cannot be deemed as the defendant's new construction or new construction of new construction of new building for the following reasons: the plaintiff's new construction of new construction of new building for 20 years or more without permission; and the defendant cannot be deemed as the defendant's new construction or new construction of new construction of new building for 2 years or new construction of new construction of new building for the same reason.

2) Whether the Plaintiff newly constructed the instant building

① According to Article 2(1) of the former Building Act (Amended by Act No. 11690, Mar. 23, 2013); Article 2 subparag. 1 of the former Enforcement Decree of the Building Act (Amended by Presidential Decree No. 24443, Mar. 23, 2013); “new construction” means to build a new building (including new construction of a primary building on a site in which only an accessory building is located, but excluding remodeling or reconstruction of a new building on a site in which there is only an existing building) on a site without any building (including a site on which an existing building is removed or demolished).

② In full view of the evidence Nos. 3-1 through 4, evidence Nos. 4-1 and 4-2, evidence Nos. 5-1 through 5, evidence Nos. 6-1 through 8, evidence Nos. 6-1 through 8, evidence Nos. 3-1 through 8, and evidence Nos. 6 through 8, as a whole, and the purport of the entire pleadings as a result of the examination by this court, the Plaintiff, around July 2012 or around August 2012, he/she newly accumulated part of the existing bearing wall of the building of this case, he/she expanded the entrance, replaced the roof of the asbestos slate with the roof of the board, and constructed part of the wall additionally.

③ However, according to each of the above evidence, evidence Nos. 5-1 through 5, evidence Nos. 6-1 through 8, and each of the statements and images of the above evidence, the building of this case was newly constructed without permission 30 years prior to May 13, 2012; the plaintiff entered into a sales contract to purchase and purchase the building under the name of A E around May 13, 2012; and paid the balance of the purchase price on July 10 of the same year; the plaintiff entered into construction of the above building as mentioned in the above paragraph (2) but the building area of the building of the above building remains unchanged, and part of the wooden pole installed with the roof mold was used before the plaintiff purchased the building.

④ According to the above circumstances, it is difficult to see that the existing building of this case was removed or demolished, and the Plaintiff was still performing construction work in a state where the existing building still exists. As such, it is insufficient to recognize that the Plaintiff newly built a building on a site without a building on or around July 2012 or around August 2012, and there is no other evidence to acknowledge it otherwise.

⑤ In addition, enforcement fines fall under the so-called indive administrative act, which is a kind of administrative indirect enforcement, and thus, it requires strict interpretation as to whether the requirements for imposing enforcement fines are met. However, in the case of re-building, extension, large-scale repair, etc. of a newly constructed building without legitimate permission or report, there is no legal basis for deeming it as a new construction. Therefore, insofar as the construction of the Plaintiff’s construction act cannot be seen as a new construction under the above paragraph (2), the instant building was newly constructed without legitimate permission or report, and it cannot be evaluated that the Plaintiff newly constructed the said building even if it was impossible to legally grant permission or report without resolving the violation.

3) Sub-determination

Ultimately, the instant disposition that the Plaintiff had constructed the instant building on July 2012 or around August 2012 was unlawful without need to further examine.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified, and the judgment of the court of first instance which has different conclusions is unfair, so it is revoked, and it is so decided as per Disposition to order the cancellation of the disposition of this case.

Maximum seal (Presiding Judge)

Oral Dus

Kimok-Dhan

Site of separate sheet

Related Acts and subordinate statutes

/ former Building Act (amended by Act No. 11690, Mar. 23, 2013)

Article 2 (Definitions)

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

8. The term "construction" means new construction, extension, remodeling, reconstruction of a building, or relocation of a building;

9. The term "large-scale repair" means repair or alteration of the structure or external form of columns, beams, bearing walls, main stairs of a building;

or extension means those prescribed by Presidential Decree.

Article 11 (Building Permits)

(1) A person who intends to construct or repair a building shall obtain permission from a Special Self-Governing Province Governor or the head of a Si

(c) A building with at least 21 floors, the use and size of which are prescribed by Presidential Decree;

The Special Metropolitan City Mayor or Metropolitan City Mayor shall obtain permission to construct a building in the Special Metropolitan City or Metropolitan City.

Article 14 (Construction Report)

(1) A building subject to permission under Article 11, if it falls under any of the following subparagraphs:

In cases, the Governor of a Special Self-Governing Province or the head of a Si/Gun/Gu shall

(d) If a report is filed, it shall be deemed to have obtained a building permit.

1. Extension, renovation, or reconstruction of the total floor area of which does not exceed 85 square meters;

5. Construction of any other small building prescribed by Presidential Decree.

Article 79 (Measures against Unlawful Buildings, etc.)

(1) If a site or building violates this Act, or any order issued or disposition taken under this Act, the competent permitting authority shall do so.

the owner of the building, the contractor, the on-site manager, or the owner or the officer of the building;

Any interested person or possessor (hereinafter referred to as the “owner, etc.”) shall order a suspension of construction works or fixing a considerable period of time.

to remove, rebuild, extend, repair, change the purpose of use, prohibit, or restrict the use of the building, and other necessary measures.

order. An order may be issued.

Article 80 (Non-Performance Penalties)

(1) The competent permitting authority shall not execute a corrective order within the corrective period after it has received the corrective order under Article 79 (1).

With respect to the owner, etc. who fails to comply with the corrective order, a reasonable period for compliance shall be fixed.

Where an order for correction is not issued, the following charges for compelling compliance shall be imposed: Provided, That a residential building with a total floor area of 85 square meters or less and a residential building prescribed by Presidential Decree among residential buildings in subparagraph 2:

The relevant local government shall not exceed 1/2 of any of the following amounts:

The amount prescribed by municipal ordinance shall be imposed.

1. Where the building has been constructed in excess of the building-to-land ratio or the floor area ratio under Articles 55 and 56, or permission;

(1) If a building is constructed without receipt of a report or without filing a report, the damage under the Local Tax Act;

In violation of an amount equivalent to 50/100 of the standard market value per square meter applicable to a building;

Not more than the amount obtained by multiplying the area;

Article 81 (Safety Inspections of Existing Buildings and Orders for Correction, etc.)

(1) The Governor of a Special Self-Governing Province or the head of a Si/Gun/Gu shall have grounds or Chapter IV for national security.

(Articles 40 through 47) A building meeting the standards prescribed by Presidential Decree, in violation of any provision of the aforesaid Articles.

removal, reconstruction, extension, repair, alteration of use, prohibition of use, and other necessary measures may be ordered.

(c)

Enforcement Decree of the former Building Act (amended by Presidential Decree No. 24443, Mar. 23, 2013)

Article 2 (Definitions)

The terms used in this Decree shall be defined as follows:

1. The term "new construction" means a new site without any building (including a site on which an existing building is removed or demolished);

to construct a new structure on a site in which only an accessory building is located.

including but excluding remodeling or reconstruction)

2. The term "extension" means the building area, total floor area, number of floors, or height of a building on an existing site;

capital increase means increase.

3. The term "renovation" means all or part of an existing building (referring to bearing walls, columns, beams, and roof trussess (referring to traditional Korean-style houses under subparagraph 16);

(1) In the case of the Council, no less than three of the roof trussess shall be included;

C) The removal of a building and the reconstruction of a building on its site within the same size as that of the previous building

section 3.

Article 11 (Construction Report)

(2) "Buildings prescribed by Presidential Decree" in Article 14 (1) 5 of the Act means any of the following buildings:

corresponding building means a building.

1. A building with a total floor area not exceeding 100 square meters;

Article 115-2 (Imposition and Collection of Charges for Compelling Compliance)

(1) "Cases prescribed by Presidential Decree" in the proviso to the main body of Article 80 (1) of the Act means the following cases:

case means the case.

1. Where a building is used without obtaining approval for use under Article 22 of the Act;

2. Where matters concerning the landscaping of a building site under Article 42 of the Act are violated;

3. Where restrictions on the height of a building under Article 60 of the Act are violated;

4. Where restrictions on the height of a building for securing sunlight, etc. under Article 61 of the Act are violated;

5. Where he/she violates the Act, or orders or dispositions under the Act (in the column of buildings in violation of attached Table 15),

Cases falling under subparagraphs 2, 4 through 9 and 13 shall be excluded), which are prescribed by Building Ordinance.

prescribed in the case

(2) Criteria for calculating charges for compelling compliance under Article 80 (1) 2 of the Act shall be as specified in attached Table 15.

(3) Procedures for imposing and collecting charges for compelling compliance shall be prescribed by Ordinance.

Article 115-3 (Corrective Order for Existing Buildings)

"Standards prescribed by Presidential Decree" in Article 81 (1) of the Act means any of the following standards:

case means the case.

1. A building determined as a result of the deliberation by a local building committee to obstruct the installation of public facilities, such as roads;

In the case

2. Harm inflicted on the general public by the permitting authority to collapse or fall down after the deliberation by a local building committee;

In the case of a building deemed to be highly likely to be located;

3. Buildings located in military operations areas, which the Minister of National Defense requests as necessary for national security.

In the case of end;