Whether the removal substitute execution can be made solely on the fact that the area exceeding the construction permit area exceeded the construction permit ratio.

If it is difficult to see that the whole building is left too harmful to the public interest because the building area exceeded the building area in violation of the contents of the building permit and the ratio of the building area exceeds the permitted ratio, it does not constitute a ground for ordering removal, which is the premise of vicarious execution.

Article 2 of the Administrative Vicarious Execution Act

Supreme Court Decision 66Nu127 delivered on January 31, 1967 (Supreme Court Decision 281Da1281 delivered on June 1, 196, Supreme Court Decision 15Nu29 delivered on June 20, 200)

Plaintiff

The head of Jung-gu

The defendant ordered the plaintiff to remove the above-mentioned above-mentioned building 37-4, 5, 39-2, and 39-5 above-mentioned building in Jung-gu, Jung-gu, Seoul, 2054.51-14399 on December 23, 1967, and the removal order is revoked for the part 1,2,3 cases of the attached drawing(a), (f), (f), (b), and (a) of 23.35 on each of the above-mentioned building 1,2,3 cases of the attached drawing(a), (c), (g), (g), (d), and (c) of 0.65 on each of the parts inside the ship connected to the plaintiff.

The plaintiff's remaining claims are dismissed.

Litigation costs shall be borne by the plaintiff.

The order issued by the defendant to remove the building on December 23, 1967 to the plaintiff shall be revoked. The order issued by the defendant to remove the building on the same 37-4 and 5, 39-2 and 5 above-ground buildings in Jung-gu, Seoul, Jung-gu, Seoul, 2054.51-14389.

Litigation costs shall be borne by the defendant.

(1) On August 31, 1966, the Defendant issued a building permit of 180 square meters per annum 1, 3 colon 1 and 180 square meters per annum on the land stated in the non-party 1’s purport of claim. The Plaintiff completed the registration of preservation of the Plaintiff’s name in December 30 of the same year by means of telephone, without undergoing the completion inspection of the building of 3rd floor on the above ground upon permission. The Defendant ordered the Plaintiff on December 23, 1967, as stated in the purport of the claim that the above building be removed because it is an unlawful building corresponding to Article 42 of the Building Act. There is no dispute between the parties.

(2) However, with respect to the above disposition taken by the defendant, the plaintiff did not have any specific instruction of the ground for illegality in making the above disposition, and there was no illegality in the above building and there is no reason to harm the public interest, which is the element of the vicarious execution. The defendant acknowledged the provisions of Article 7 of the Building Act by failing to report the commencement and completion of construction when the plaintiff constructed the above building with the permission for construction, and by using it without the completion inspection. (b) The building's horizontal number exceeds the permitted area, and extended more than the permitted area than the permitted area, and the building's construction line and the site area of the building area adjacent to the above building area exceeded the permitted area, and thus, the building's construction without complying with the designation order and suspension order is an unlawful building, which seriously undermines the public interest, such as fire, traffic, and safety and sanitation.

(1) In the construction of the instant building, the Plaintiff failed to file a report on the commencement of construction under Article 7 of the Building Act, and the fact that the Plaintiff used the instant building without completing a completion inspection after the completion of the construction is not the Plaintiff or the Plaintiff does not clearly dispute.

(2) According to Gap evidence Nos. 4 (Notice of Construction Permit), Eul evidence Nos. 1-1, 2, and 3 (Application and Drawings) and the whole purport of pleadings as a result of original verification, the site area of the building in this case is 89.33 square meters, and the permitted building area is 180 square meters per 60 square meters per annum for each floor and is 67.16 percent of the site area of the building. Since there are roads less than 3 meters to the east of this building, the construction line was 1.5 square meters from the center line of the above road pursuant to the provisions of Article 30.1 of the Building Act and there is no dispute over the establishment of the above 1,2,3 (Application and Drawings) and there is no other evidence to acknowledge the receipt by the plaintiff, and the plaintiff is no more than 1,50 square meters per annum of the construction permit (2,000 square meters per annum of the construction permit) and there is no evidence to recognize the completion of construction permit No. 1, 2, 61, 2,000000 square meters per one (2).

Therefore, at least one part of the above building does not constitute an illegal building under Article 42 (1) of the Building Act. In such a case, it is examined as to whether the order for removal of this case was legitimate or not, and Article 2 of the Administrative Vicarious Execution Act provides that even if the order for removal of this case was issued by an administrative agency, if the order for removal of this case is deemed to seriously undermine the public interest by failing to perform the order for removal and failing to perform the order for removal, the person ordered by the administrative agency. However, among the facts acknowledged above in this case, if the order for removal of this case did not report on the commencement of construction, it cannot be deemed that the order for removal, which serves as the premise for the vicarious execution, constitutes a cause for order for removal of this case where there is no other evidence to acknowledge that the use of this case does not have any special public interest, and it is difficult to view that the use of this case goes beyond the building area in this case as a result of this exceeding the building area, and it does not infringe the public interest in whole.

However, among the facts acknowledged earlier, the construction of the building on the surface of the road beyond the building line permitted by the Plaintiff cannot be deemed as a hindrance to the maintenance of safety, such as fire prevention and traffic, etc. in the neighboring area adjacent to the road, since it is narrow in light of the overall circumstances of the field recognized earlier, and therefore, it seems that the part of the building on the road going to the road beyond the above building line is neglected and thus, it is extremely detrimental to the public interest. Therefore, the instant disposition ordering the removal of that part cannot be deemed justifiable, and the instant disposition after one year from the completion of the said construction cannot be deemed as a ground for excluding the legitimacy of the disposition.

As a result, the defendant's disposition of this case is just only for the part ordering the removal of the part of the building constructed in excess of the building line stated in the order, and it cannot be said that the disposition of this case is an illegal disposition that does not meet the requirements of the order. Thus, the plaintiff's lawsuit seeking the revocation of the disposition of the order of this case is just to the extent of seeking the revocation of the above unlawful part. Thus, the defendant's above disposition is revoked partially, and the remaining claims of the plaintiff are without merit, and the costs of the lawsuit are dismissed at the plaintiff'

Judges Jeong Tae-won (Presiding Judge)