In cases where a wall installed in violation of Article 47(1) of the Building Act constitutes “facilities annexed to a building”, whether it is subject to corrective measures pursuant to Article 79(1) of the same Act (affirmative), and cases where a wall not corresponding thereto is subject to corrective measures.

In full view of the contents, structure, etc. of Articles 2(1)2, 47(1), 79(1), and 83(1) of the Building Act, and Articles 118(1)5 and 118(3) of the Enforcement Decree of the Building Act, “building” subject to corrective measures under Article 79(1)2 of the Act refers only to a building defined under Article 2(1)2 of the Act. Thus, even if a wall is installed in violation of Article 47(1) of the Act, if the wall has a roof, pole, or wall among the structures settled on the land (hereinafter “building”), and its physical or functional independence is lost, it is subject to corrective measures under Article 2(1)2 of the Building Act, and thus, it is not subject to corrective measures under Article 79(1)3 of the Act, but is not subject to corrective measures under Article 79(1)3 of the Act.

Articles 2(1)2, 47(1), 79(1), and 83(1) and (3) of the Building Act; Article 118(1)5 and (3) of the Enforcement Decree of the Building Act

Medical Corporation, Hanyang Medical Foundation (Law Firm, Attorneys Lee Dong-soo et al., Counsel for the defendant-appellant)

Head of Mayang-si Mayang-si

Defendant 1 and one other

Seoul High Court Decision 2015Nu54911 decided June 9, 2016

The appeal is dismissed. The costs of appeal are assessed against the Plaintiff, including the part resulting from supplementary participation.

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1 and 2

A. Article 2(1)2 of the Building Act (hereinafter referred to as the "Act") provides that "any structure shall mean a structure fixed on land, with a roof, columns or walls, and facilities appurtenant thereto, an office, a performance hall, a shop, a garage, a warehouse installed on an underground or elevated structure, and other structures prescribed by Presidential Decree." Article 47(1) of the Act provides that "any building and fence shall not go beyond the vertical section of the construction line." Article 79(1) of the Act provides that "if a site or a building violates this Act or an order or disposition issued under this Act, the permission-granting authority shall order the owner of the building to suspend the construction, or to remove, rebuild, repair, change, prohibit or restrict the use of the building, Article 83(1) of the Act provides that "Article 83(1) of the Act shall apply mutatis mutandis to the head of the Gun/Gu, as prescribed by Presidential Decree, and that any person who intends to install a retaining wall or a building and take other similar measures shall file a report to the Governor of the competent Special Self-Governing Province, as prescribed by Presidential Decree."

In full view of the provisions, structure, etc. of the above construction-related Acts and subordinate statutes, “building” that is subject to corrective measures under Article 79(1)2 of the Act refers only to a building defined under Article 2(1)2 of the Act. Thus, even if a wall installed in violation of Article 47(1) of the Act is installed, in cases where the wall is integrated into “building with a roof, pole, or wall from among structures settled on the land” (hereinafter “building”) and “facilities attached to a building” as it is lost independent due to its physical or functional integrity, it constitutes “building” under Article 2(1)2 of the Building Act, and thus, it is subject to corrective measures under Article 79(1) of the Act. However, a wall that does not fall under this may be subject to corrective measures under Article 83(3) of the Act only in cases of a structure subject to reporting on the construction under Article 83(1)2 of the Act.

B. According to the reasoning of the judgment below and the evidence duly admitted by the court below, ① the road of this case is constructed between the building site of Yangyang-ju Hospital and the defendant joining the defendant, which is installed on the land owned by the plaintiff, and ② the road of this case is a dead-end road which is installed across the hospital site from the entrance of the above hospital, to one side of the site of the hospital, and ③ the wall of this case is installed across the boundary of the road of this case and the land owned by the defendant joining the defendant. Since the wall of this case serves as the road of this case for the use of the road of this case as the road of this case as the premises of the above hospital, the wall of this case serves as the boundary between the above hospital and the outside. From the physical and functional point of view, it constitutes the "facilities attached to the hospital building" of Article 2 (1) 2 of the Act.

C. Thus, the court below erred in finding that the "building" under Article 79 (1) of the Act includes a wall installed in violation of the restriction under Article 47 (1) of the Act as a matter of course against the restriction under Article 79 (1) of the Act. However, as seen earlier, as long as the wall of this case is "a facility annexed to a hospital building" and falls under the building under the Building Act, the court below's conclusion that it becomes subject to corrective measures under Article 79 (1) of the Act is justifiable, and therefore, the

2. As to the third ground for appeal

In light of the relevant legal principles and records, the lower court’s conclusion rejecting the Plaintiff’s assertion of deviation and abuse of discretion on the ground that there was no error in the balancing between the public interest gained by the instant corrective measure and the disadvantage suffered by the Plaintiff. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Sang-ok (Presiding Justice)