Appellant (Attorney Clerks)

Seoul District Court Order 2002Na2016 dated December 5, 2002

The order of the court below is changed.

6,000,000 won shall be imposed on the appellant for compelling execution.

1. Facts of recognition;

According to the records, the head of Guro-gu ordered the appellant to correct the violation of each Building Act, which has extended the warehouse of the fourth floor to the multi-family house, the multi-family house of the second floor to the multi-family house, and the multi-family house of the fourth floor to the multi-family house, and the warehouse of the fourth floor, but did not comply with the order. It is recognized that the appellant on April 3, 2002 imposed the enforcement fine of KRW 8,167,290 on the appellant, and the lower court recognized the violation and imposed the enforcement fine of the same amount.

2. The appellant's assertion and judgment

A. At the time of winning the instant building through a voluntary auction (case number omitted), the appellant asserts to the effect that the order of the court below is unlawful and cancelled since the appellant did not have the indication that the instant building was an illegal building, as well as the appraisal statement, tender items specification, a certified copy of the register, and a building management ledger, and he responded to the answer that there was no problem as a result of inquiring of the competent authority. Since there was no subsequent construction act, the appellant did not have the obligation to pay for compelling performance and did not know that the appellant was an illegal building, the appellant did not have the obligation to pay for compelling performance and did not have any justifiable reason.

On the other hand, the corrective order under the Building Act and the imposition of charges for compelling compliance are to correct the present condition of an illegal building, which may be issued to the owner who controls and manages the building at the time of the corrective order. Thus, the corrective order and the imposition of charges for compelling compliance against the appellant at the time of the corrective order are lawful. In addition, the auction is basically a sale between the successful bidder, the execution officer and the owner, and the auction is not recognized as warranty liability under Article 580 of the Civil Act due to defects (including legal defects) in addition to the seller's warranty liability under Article 578 of the Civil Act. Thus, the bidding participants are obliged to conduct an auction at their own responsibility, such as conducting an investigation in advance on the objects of auction, and thus, the assertion that the bidder knew that there was a fact that the illegal extension or unauthorized alteration of the building in this case was included in the part of the illegal extension or unauthorized alteration of the building at

B. As to the fact that the appellant changed the use of multi-unit house to multi-unit house among the instant buildings, the concept of multi-unit house was newly established on April 30, 199 by the Enforcement Decree of the Building Act (16284 of the Building Act) and the multi-unit house was not subject to any violation of the Building Act, and there was no separate act of change in the purpose of use. As the completion date of the instant building was the date of September 8, 1989 and the completion date of change in the purpose of use was completed on July 1990 and all households have moved into it, the appellant asserts that Article 6 of the Addenda of the former Building Act (amended by Act No. 4381 of May 13, 1991; hereinafter referred to as the “former Building Act”) is unlawful since Article 83 of the former Building Act should be imposed a fine for negligence under Article 56-2 of the former Building Act, notwithstanding the provisions of Article 83 of the same Act.

Since the purpose of use under the Building Act does not necessarily entail a tangible change, and the successor to a building whose purpose of use has already been changed falls under an act of changing its purpose of use. The third floor of the building in this case is determined as multiple houses, and multi-user houses should not be in the form of independent residence independently from a house which has a structure of living for a large number of students, employees, etc. But even with the appellant's assertion, the third floor of the building in this case can no longer correspond to multi-user houses because 9 households already reside in the form of independent residence, and thus its purpose is changed. Even if the concept of multi-family house is newly established under Article 16284 of the Enforcement Decree of the Building Act, it shall not be permitted to change its purpose of use unless the appellant has used it continuously for the purpose of multi-family house, and the person who intends to change the purpose of use of the building or multi-family house under the provisions of Article 14 (2) of the Building Act shall report it to the head of the Si/Gun/Gu under the conditions as prescribed by the Presidential Decree.

In addition, since the alteration of use under the Building Act has a nature similar to the continuing law under the Criminal Act and the provisional illegal state exists as long as the lessee continues to use a building for other purposes, Article 6 of the Addenda to the former Building Act shall apply the amended Act before the enforcement of this Act, and the amended Act to subsequent acts, notwithstanding the provisions of Article 83, to the disposal of a building in violation of the previous provisions prior to the enforcement of this Act, respectively. Since the appellant continues to use the building after the alteration of the use of the building in this case was made, it can be imposed on the appellant under the current Building Act (the fact that the building in this case was approved for use on September 8, 1989 and the tenant had already resided on around 190 does not affect it). In addition, in this case, the appellant's assertion that the unauthorized extension of the building in this case was without merit before June 1, 1992.

C. The appellant asserts that the imposition of enforcement fines on this part is unlawful since parking facilities are planned to be repaired immediately, and building waste materials are already collected. However, according to the records of this case, the enforcement fines imposed by the competent authority and the court below are calculated only on the basis of unauthorized change of use and unauthorized extension of use. Thus, the appellant's assertion that it is unnecessary to examine further.

D. Therefore, the appellant’s violation of the Building Act may be recognized as seen above. However, considering all the circumstances indicated in the record, such as the background and content of the violation of the Building Act, and the degree of offense, it is reasonable to impose KRW 6 million on the appellant.

3. Conclusion

If so, the order of the court below is modified to impose 6,00,000 won for compelling execution on the appellant, and it is so decided as per Disposition.

Judges Yellow-gu (Presiding Judge)