The case holding that the removal, replacement execution and dismissal disposition is legitimate even if the building illegally constructed on the third floor rooftop of the existing building does not harm the urban beauty or the right to sunshine of residents.

A building constructed without permission may be ordered to be removed by the head of the Si/Gun (the head of the Gu in Seoul Special Metropolitan City) under the Building Act, and if an illegal architect fails to comply with it, vicarious execution may be conducted under the Administrative Vicarious Execution Act. When the Building Act is constructed, the head of the Si/Gun may obtain permission from the head of the Si/Gun in advance. In consideration of the height of the building, harmony with neighboring buildings, building-to-land ratio, usage rate, etc. to preserve the urban landscape and living environment, the construction of the building necessary for the formation of the building shall be permitted without violating the restrictions stipulated under the Building Act, such as fire-fighting facilities, parking facilities, and other buildings constructed in conformity with the conditions of the permission, and the construction of the building shall be ordered to undergo a completion inspection after ascertaining whether the building was constructed in compliance with the conditions of the permission, and thus, the order to remove the building without permission and the disposal of the building caused by the failure shall be deemed justifiable, barring any special circumstances, and the removal order and disposal of the building illegally constructed by the Plaintiff on the third floor of the existing building and its neighboring residential zone.

Article 2 of the Administrative Vicarious Execution Act, Article 5 of the Building Act

Seoul High Court Decision 200Na14888 decided May 1, 200

The head of Dongjak-gu

Seoul High Court Decision 89Gu6237 delivered on December 15, 1989

The judgment of the court below is reversed.

The case is remanded to Seoul High Court.

According to the reasoning of the judgment of the court below, the court below recognized that after April 21, 1982, the plaintiff recognized that the building was used as a house by constructing a 66mm2 building with a brick bridge roof without permission from the authority of the authority on the 3rd floor building (total 376.17m2 square meters in total) of 186-2 and 3 lots of land and the 3rd floor of reinforced concrete building for library (total 376.17m2 square meters in total), which is owned by the plaintiff after 1982. However, since the location of the building was 70m or 70m2 in the river of Gangnam-gu, the building was entered into a house in the river of Gangnam-do, and the illegally constructed building did not seem to be a building, it did not infringe the residents' right to sunshine, and it did not interfere with sanitation, fire-fighting and security relations, and it did not constitute an unlawful act of vicarious execution, such as urban planning, road traffic, fire-fighting, urban landscape and prevention.

However, a building constructed without permission may be ordered to be demolished by the head of the Si/Gun (the head of the Gu in Seoul Special Metropolitan City) under the Building Act, and if an illegal architect fails to perform it, vicarious execution may be conducted under the Administrative Vicarious Execution Act, and when the Building Act is constructed, the head of the Si/Gun shall, when granting permission for construction, require the head of the Si/Gun/Gu to permit the construction of the building necessary for preserving the urban landscape and living environment, considering the height of the building, harmony with neighboring buildings, building-to-land ratio, usage rate, etc., and to verify whether the building was constructed in compliance with the restrictions under the Building Act, and to check whether the building was constructed in compliance with the permitted conditions, and to check whether the building was constructed in compliance with the restrictions under the Building Act, and to prevent the occurrence of the illegal building and to remove the building if the building was produced. Thus, barring any special circumstances, the head of the Si/Gun/Gu order to remove the building without permission and the disposition taken due to the failure

However, the court below held that the plaintiff was located on the third floor of the existing building of the building illegally constructed and located on the 70 meters away from the shore of the existing building, and that there is no error in the aesthetic view and no infringement of the right to enjoy sunshine against neighboring residents, and there is no violation of the right to enjoy sunshine from the sanitation, fire-fighting, and security relations, but the above fact of the judgment below's approval alone is hard

The court below, however, cannot be said to have cancelled the order to remove a building or the order to take measures to remove a building that the defendant had issued, or the order to take measures to remove a building, without clear grounds that it is a disposition lawfully made in accordance with the law. The appeal to this point is justified.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating judges.

Justices Kim Yong-sung (Presiding Justice)