(a) In issuing an order to remove a building in violation of the Building Act and guiding its vicarious execution, any act to be performed by the obligor, and the details and scope of the act to be performed by vicarious execution upon nonperformance of such obligation;

(b) The case holding that the court below erred by misapprehending the legal principles as to whether the removal, substitution, execution, and dismissal disposition against the building violating the Building Act was specified or not;

(c) The case holding that the removal, replacement and dismissal disposition against the building violating the Building Act is unlawful on the ground that the degree of violation of the Building Act cannot be deemed to seriously undermine the public interest;

A. Under Article 42(1) of the Building Act and Articles 2 and 3(1) of the Administrative Vicarious Execution Act, when an administrative agency issues an order to remove a building in violation of the Building Act and imposes an order to remove it by vicarious execution in the event of nonperformance of such obligation, the administrative agency’s act to be performed by the obligor and the contents and scope of the act to be performed by the vicarious execution in the event of nonperformance of the said obligation should be specified in detail. However, the determination of the specificness is based on whether the person liable for the vicarious execution knows the location, structure, size, purpose of use, permitted relation, etc. of the actual building by comparing and comparing it

B. The case holding that the court below erred by misapprehending the legal principles as to whether the removal, substitution, execution, and dismissal disposition against the building in violation of the Building Act were specified

C. The case holding that the removal, vicarious execution, and the disposal of the building in violation of the Building Act are illegal since it is not likely to harm the aesthetic view around the building, and the removal of the building by vicarious execution is not a separate operation for the public interest, while it is not a serious harm to the public interest such as road traffic, fire prevention, safety, sanitation, city fine view and pollution prevention, etc.

Articles 2 and 3 of the Administrative Vicarious Execution Act, Article 42 of the Building Act

A. Supreme Court Decision 85Nu631 delivered on November 12, 1985 (Gong1986,65) 89Nu4543 delivered on January 25, 1990 (Gong190,561) (Gong1990,561 delivered on January 23, 1990)

Kim Sung-sung

The head of Dong/Metropolitan City

Gwangju High Court Decision 88Gu833 delivered on November 20, 1990

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

1. The court below adopted the appraisal result of the appraiser Park Nam-man as evidence and compared the size of the building and the building permit area of the building of this case, and compared with the records, it is acceptable to compare it with the records, and there is no error of law such as incomplete deliberation or misconception of facts against the rules of evidence.

2. In imposing an order to remove a building in violation of the Building Act and Articles 2 and 3(1) of the Administrative Vicarious Execution Act, the administrative agency shall specify the act to be performed by the person liable for performance and the contents and scope of the act to be performed by the person liable for performance when the person fails to perform his/her duty, and the contents and scope of the act to be performed by vicarious execution when the person liable for performance fails to perform his/her duty. However, the determination of whether the act is specified shall be made by comparing and comparing with the indication of the location, structure, size, purpose of use, permitted relation, etc. of the actual building (see, e.g., Supreme Court Decisions 89Nu4543, Jan. 25, 1990; 85Nu631, Nov. 12, 1985).

According to the reasoning of the judgment below, the court below found that the defendant, on September 28, 198, extended the building of this case on September 28, 198 without filing a report on change of design, caused 3.6 square meters of each of 1,2, and 3th floor above the ground to intrudes into the site of the above Kim Jong-dong, Gwangju-dong, 116-13, which is the site owned by neighboring Kim Jong-dong, and ordered the plaintiff to remove the part of the non-party Kim Jong-dong, which is the site of the non-party Kim Jong-dong, and ordered the removal of the part of the non-party Kim Jong-dong, and ordered the vicarious execution if not implemented the order. According to the appraisal result of the appraiser Yangpy-dong, the court below held that the 2.4 square meters of each of 1,2, and 3th floor above the ground of the building of this case was invaded by the above Kim Jong-dong, and thus, the part of the building of this case cannot be found to be unlawful by the plaintiff.

However, according to the records, the object of the instant order disposition among the 1, 2, and 3 floors above the ground of the instant building, it is apparent that the damaged part of the building site owned by the above Kim Gung-type appears clearly by the order to correct the illegal building two times according to the result of the survey conducted before the said order was taken. Although the affected part cannot be distinguished from the whole building, it can be determined by the method of boundary surveying, etc. at the time of removal, the plaintiff, who is the person liable for vicarious execution, can sufficiently know the contents and scope of the duty of vicarious execution, so it cannot be said that the contents and scope of the act of vicarious execution are not specifically specified. Even if the area indicated in the book of the order is different from the actual area or the result of the affected area is based on the survey conducted by the surveyor, it cannot be viewed differently because it is merely a mistake in the method of survey or an error in the technology.

Therefore, the court below erred in the misapprehension of legal principles as to whether the measures for the dismissal are specified.

3. Even if a building violates the Building Act, in order to provide guidance for removal free execution under Article 2 of the Administrative Vicarious Execution Act, it shall be limited to the case where leaving the failure to remove the building is deemed to seriously undermine the public interest (see Supreme Court Decision 89Nu6969, Jan. 23, 1990).

However, according to the facts acknowledged by the court below, the plaintiff newly constructed the building of this case and obtained permission for construction to construct the underground excavation and the building combination wall from the above Kim Jong- System to the boundary of the site. Since the construction of the building of this case was conducted by the cadastral engineer in the presence of the above Kim Jong- System before the construction, the construction of the underground floor started after making file construction at a distance of 30 centimeters wide from the boundary line according to the above surveying, and the removal of the building area of the building of this case, and the removal of the underground floor was completed before the first inspection of the completion of the construction, the underground floor part was not illegal, and the construction cost of the building of this case did not exceed 39.3 square meters, and the floor area of the building of this case was more than 4.4 meters above the ground surface area of each of the construction permission of this case, and there were no concerns that the above construction cost of the building of this case would be more than 9.4 meters above the ground surface area of the building of this case.

Therefore, the above error of the court below did not affect the conclusion of the judgment, and the final appeal cannot be accepted.

4. Accordingly, the appeal shall be dismissed, and the costs of appeal shall be borne by the losing party. It is so decided as per Disposition by the assent of all participating judges.

Justices Kim Jong-soo (Presiding Justice)