[1] Whether a “building separate from a building” under Article 118(1) of the Enforcement Decree of the Building Act means the construction of a structure separate from the building permit or report (affirmative)

[2] In a case where the Defendants were indicted for violating the Building Act by constructing a retaining wall without reporting to the competent administrative agency in the process of building construction in accordance with the building permit, the case reversing the judgment below which found the Defendants guilty on the ground that the construction of the retaining wall was conducted together with the construction of the building before approval for use of the building within the building site and not included in the construction report of the structure under the Building Act because it does not constitute “construction separate from the building

[1] Article 83(1), Article 110 subparag. 3 of the Building Act, Article 118 subparag. 5 of the Enforcement Decree of the Building Act, Article 11(1) and Article 11(5)2 of the Building Act, Articles 9(1) and 11(3) of the Enforcement Decree of the Building Act, the legislative purport of “authorized matters for permission” as provided in the subparagraphs of Article 11(5) of the Building Act, and Article 11(5) of the Building Act, where a building is intended to be constructed along with the construction of a building, and where an administrative agency is obligated to submit an application and required documents for construction to obtain a report under the relevant Act and subordinate statutes, and where it is intended to construct a structure separate from the building subject to construction permission to obtain a report or management, it is reasonable to secure and manage the information separately from the building subject to construction permission under Article 11(5) of the Building Act, and it is not necessary to obtain a report or construction permission separately from the building subject to construction permission to obtain a construction report or management.

[2] In a case where the Defendants did not report to the competent administrative agency in the process of constructing a building in accordance with a building permit, and constructed a retaining wall of approximately 2.4 meters from the boundary of the left-hand side of the building in front of the Act on the Construction of a retaining wall of the Act on the Construction of a building from the Act on the Construction of National Structures, which is located in the vicinity of the building, and was prosecuted for violation of the Building Act, the Court reversed the judgment below which found otherwise guilty on the ground that the construction of a retaining wall was conducted together with the construction of the building before approval for use of the building within the building site of the building for which the construction permit was granted, and is not included in the “construction separate from the building” under Article

[1] Articles 11(1) and (5)2, 83(1), and 110 subparag. 3 of the Building Act, Articles 9(1), 11(3), and 118(1) of the Enforcement Decree of the Building Act, Articles 6(1)3 and 12(1)2 of the former Enforcement Rule of the Building Act (amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 321, Jan. 6, 201) / [2] Articles 83(1), 110 subparag. 3, and 112(3) of the Building Act, Article 118(1) of the Enforcement Decree of the Building Act, Articles 325 and 364(6) of the Criminal Procedure Act

[1] Supreme Court en banc Decision 2010Du14954 Decided January 20, 201 (Gong2011Sang, 427)

Defendant 1 and one other

Defendants

Freeboard and one other

Law Firm Seon, Attorneys Nadok-don

Suwon District Court Decision 201DaMa360 decided July 12, 2011

The judgment of the court below is reversed.

Defendants are not guilty.

The summary of the judgment of innocence against the Defendants is published.

1. Summary of grounds for appeal;

A. misunderstanding of facts or misunderstanding of legal principles

Although the retaining wall of this case constructed by Defendant 2 is not a structure separate from that of the whole building for which the building permit was already granted, it is not included in the building report under Article 83(1) of the Building Act and Article 118(1) of the Enforcement Decree of the Building Act, the lower court found the Defendants guilty of the facts charged in this case on the ground that the construction of retaining wall of this case is not included in the building report. In so doing, the lower court erred by misapprehending the legal principles on the building report of this case, or by misapprehending

B. Unreasonable sentencing

Even if the facts charged against the Defendants are found guilty, the sentence of each of the court below against the Defendants (the fine of one million won) is too unreasonable.

2. Judgment on misconception of facts or misapprehension of legal principles

A. Summary of the facts charged

Defendant 2 is the representative director of Defendant 1, and Defendant 1 is a corporation established for the purpose of the certification inspection and quality inspection of electrical and electronic equipment, and Defendant 1 is the owner of the building for which the construction permit was granted to the general steel structure and the warehouse of reinforced concrete structure, three research facilities, and 3,312.51 square meters of the total floor area (hereinafter “instant building”).

(1) From April 22, 2010 to May 2, 2010, Defendant 2, without reporting to the competent administrative agency, built the height of the retaining wall of the reinforced soil of the building C-dong building of this case from Nonindicted Party 1, the inspection agent Nonindicted Party 1, before the use of the building, to lower the height of the retaining wall of the reinforced soil of the building C-dong building of this case, and he accumulated a landscape stone in the front of about two meters from the boundary line of the C-dong left-hand side of the building, and built a retaining wall of about 9 meters in length and about 2.4 meters in height with a turf attached with a turf.

(2) Defendant 1 Co., Ltd., at the above date and place, built retaining walls without reporting the Defendant’s business to the competent administrative authority as above.

B. The judgment of the court below

The lower court found the Defendants guilty on all the charges based on the evidence at that time.

C. Judgment of the court below

However, the above judgment of the court below is not acceptable for the following reasons.

(1) Article 83(1) of the Building Act provides, “A person who intends to construct a retaining wall, chimney, advertising tower, high-priced water tank, underground shelter, and other similar structures prescribed by Presidential Decree shall file a report thereon with the Governor of a Special Self-Governing Province or the head of a Si/Gun/Gu, as prescribed by Presidential Decree.” Article 118(1) of the Enforcement Decree of the Building Act delegated by him/her provides, “a structure that shall be reported to the Governor of a Special Self-Governing Province or the head of a Si/Gun/Gu (referring to construction separated from a building) pursuant to Article 83(1) of the Building Act shall be as follows:

Meanwhile, Article 11(1) of the Building Act provides that “A person who intends to construct or repair a building shall obtain permission from the Governor of a Special Self-Governing Province or the head of a Si/Gun/Gu.” Article 11(5) of the Building Act provides that a person who intends to obtain a building permit or to file a building report shall obtain a building permit under paragraph (1) of the same Article (hereinafter “Article 11(5) of the same Act shall be deemed to have obtained a building permit or filed a report under subparagraph 2 of Article 83 of the same Act (hereinafter “matters subject to authorization”), and includes “the report on the construction of a structure under Article 83” as one of the matters subject to authorization. Furthermore, Articles 9(1) and 11(3) of the Enforcement Decree of the Building Act, Articles 6(1)3 and 12(1)2 of the Enforcement Rule of the Building Act, and Article 11(5) of the same Act provides that a person who intends to obtain a building permit or file a building report shall submit an application and required documents to obtain permission or report under paragraph 10.

In light of the legislative intent of each of the above provisions and the legislative intent of the agenda items on the authorization and permission, it is reasonable to interpret Article 118(1) of the Enforcement Decree of the Building Act to mean the construction of a structure in advance regardless of the construction permission, etc., or the construction of a structure separately after the construction of a building, such as the construction of a structure in advance or the construction of a structure separately from the building permission or report.

First, in the case of constructing a structure under Article 83 of the Building Act along with the construction of a building, an application and required documents required to be submitted by the relevant Act and subordinate statutes shall be submitted to report under Article 83 (1) of the Building Act. Therefore, an administrative agency need not separately receive reports on the construction of a structure and identify and manage necessary information for administrative purposes.

Second, when a building permit is granted, the report on the construction of a structure under Article 83 of the Building Act is deemed to be the subject of the report under the Article 83 of the Building Act.

Third, if “to construct a building separately from a building” under Article 118(1) of the Enforcement Decree of the Building Act is interpreted as “to construct a building physically separate from a building,” the building physically combined with a building is excluded from those subject to reporting, and the building physically separated from the building is subject to reporting. However, in order for an administrative agency to grasp and manage necessary information for administrative purposes, there is no reasonable ground to grasp and manage the information only with respect to the building physically separated from the building.

(2) According to the evidence duly adopted and examined by the court below: ① Nonindicted 2 was the building owner on April 5, 2007, and the site location was set at Blue-ri (number 2 omitted) in Gwangju City; on May 12, 2009, the building permit was changed to Defendant 1 corporation on September 16, 209; ② Nonindicted 3 corporation (hereinafter “Nonindicted 3”) did not request the construction of the instant building to be restored to its original state on June 25, 2009 by attaching the building-to-land ratio to KRW 10,00,000 to the lower portion of the instant building to KRW 10,000,000,000 to KRW 20,000,000,000 and KRW 1,5,000,000,000,000 and KRW 2,00,000,000,00,000.

Examining the above facts in light of the legal principles as seen earlier, the construction of retaining wall of this case was conducted along with the construction of the building before approval for the use of the building within the building site of this case, and it does not constitute “construction separate from the building” under Article 118(1) of the Enforcement Decree of the Building Act, and it cannot be deemed that it is subject to reporting on the construction of a structure under Article 83 of the Building Act.

(3) Therefore, although each of the facts charged against the Defendants constitutes a case where there is no proof of crime or a case where the crime is not committed, the lower court determined otherwise and found the Defendants guilty of each of the above facts charged. In so doing, the lower court erred by misapprehending the legal doctrine on the subject of reporting on the construction of a structure under the Building Act, which affected

3. Conclusion

Therefore, the judgment of the court below shall be reversed in accordance with Article 364(6) of the Criminal Procedure Act, since the defendants' appeal is well-grounded, and the following judgment shall be rendered again.

The summary of each of the facts charged against the Defendants is as stated in Article 2-A(a) of the Reasons for Appeal. This constitutes a case where there is no proof of a crime or a case where it does not constitute a crime as seen earlier, and thus, the Defendants are acquitted by Article 325 of the Criminal Procedure Act, and the summary of this judgment is publicly announced in accordance with Article 58(2) of the Criminal Act. It is so decided as per Disposition.

Judges Yoon Jin-han (Presiding Judge)