2017Guhap3190 Revocation of Disposition of Imposing a non-performance penalty

Malue Agency Corporation

Head of Busan Metropolitan Government

November 3, 2017

November 17, 2017

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant’s disposition of imposing enforcement fines against the Plaintiff on July 4, 2017 is revoked.

1. Details of the disposition;

A. On March 17, 2017, the Plaintiff: (a) from the manager of a spam-scale superstore, Busan, the Busan, Seocheon-gu, Busan;

Ro-ro 4, Roproplate No. 4001, and 42 others, and 1858.09m2 (hereinafter referred to as “the leased object of this case”) concluded a lease agreement under which the leased object of this case is leased from March 14, 201 to March 13, 2018 (hereinafter referred to as “the lease agreement of this case”) for rent 111,486,000, and the lease period of lease from March 14, 2017.

B. On April 3, 2017, the Defendant discovered the fact that the Plaintiff was working to use the leased object of this case designated as sales facilities and Class II neighborhood living facilities for two model houses and public relations offices corresponding to cultural and assembly facilities.

C. The Defendant issued an order to voluntarily remove the leased object of this case to the Plaintiff on April 7, 2017 and May 17, 2017, on the ground that the Plaintiff, without permission, changed the purpose of use of the leased object to cultural and assembly facilities. However, on July 4, 2017, the Defendant imposed KRW 58,365,00 for enforcement fine to the Plaintiff on July 4, 2017 (hereinafter “instant disposition”).

【Fact-finding without a dispute over the grounds for recognition, Gap evidence 1, 2, 9 (including each number, hereinafter the same shall apply), Eul evidence 1 through 7, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff entered into a regional housing association contract with the regional housing association promotion committee (hereinafter referred to as the "promotion committee of this case") and entered into the instant lease contract on behalf of the promotion committee of this case on behalf of the promotion committee of this case, and the actual lessee is the promotion committee of this case, and the plaintiff entered into the instant lease agreement with the manager of the leased object of this case on behalf of the promotion committee of this case, after hearing the answer that the plaintiff may use the leased object of this case as model model model model model model model, and the plaintiff was aware of the violation of the laws and regulations after receiving a corrective order from the defendant.

At the time, the model house was completed and the immediate removal was not possible. Considering these circumstances, the instant disposition is unlawful as it deviatess from and abused discretion due to excessive suspicion to the Plaintiff.

B. Relevant statutes

It is as shown in the attached Form.

(c) Markets:

In light of the following circumstances revealed in light of the purport of the entire pleadings, the instant disposition cannot be deemed to have exceeded and abused discretionary power by excessively harshly treating the Plaintiff. Accordingly, the Plaintiff’s assertion is without merit.

① In light of the contents of the instant lease agreement, which is a disposal document, and the awareness of lessor, etc., the Plaintiff is the party to a contract that leases the leased object of this case, and the entity that executes the construction to use the leased object of this case as a model housing. Although the Plaintiff entered into a lease contract for the instant promotion committee, this is merely an internal relationship between the two parties, and thus, it cannot be deemed that the Plaintiff is not a party to a corrective order or disposition of this case on the ground of such reasons.

② The Plaintiff confirmed the building ledger before entering into the instant lease agreement, thereby confirming the use of the leased object of this case. Nevertheless, it cannot be said that the Plaintiff was negligent in entering into the lease agreement with the manager’s belief and belief only without properly verifying it.

③ At the time the Defendant issued a timely change of the Plaintiff’s use of the leased object through on-site verification, the Defendant still was in operation, not in the state of completion and operation of the model house.

Therefore, it can not be said that the plaintiff could not implement the corrective order because it is impossible to remove the model right immediately.

3.In conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and it is so decided as per Disposition.

Judge Han-young

Judges Kim Yong-hwan

Judges Dogdogia

Relevant statutes

* Building Act

Article 19 (Change of Use)

(1) Any alteration of the use of a building shall be made in compliance with the standards for the altered use.

(2) A person who intends to alter use of a building for which approval for use has been obtained pursuant to Article 22 shall obtain permission from a Special Self-Governing City Mayor, a Special Self-Governing Province Governor, or the head of a Si/Gun/Gu, or file

1. Persons subject to permission: Where he/she changes the use of a building falling under any subparagraph of paragraph (4) into the upper group (referring to a group of facilities smaller than the group of facilities in which the number under each subparagraph of paragraph (4) intends to change the purpose of use) of a building;

2. Persons subject to reporting: Where he/she changes the use of a building falling under any subparagraph of paragraph (4) into a use falling under subordinate group (referring to a group of facilities larger than the group of facilities in which the number under each subparagraph of paragraph (4) intends to change the use of a building)

Article 79 (Measures against Unlawful Buildings, etc.)

(1) If a site or a building violates this Act or any order issued or disposition taken under this Act, the competent permitting authority may cancel permission or approval granted under this Act, or order the owner, contractor, on-site manager, owner, manager or possessor (hereinafter referred to as "owner, etc.") to suspend construction works, or to remove, rebuild, extend, repair, change, prohibit, or restrict the use of the building for a reasonable time, or take other necessary measures.

Article 80 (Non-Performance Penalties)

(1) A permitting authority shall impose the following charges for compelling compliance on a project owner, etc. who fails to comply with a corrective order within the corrective period after receiving the corrective order under Article 79 (1), if the person fails to comply with the corrective order within the reasonable compliance period necessary for the implementation of the corrective order within the period:

Where a residential building, the area of which does not exceed 85 square meters (based on the area of household in cases of multi-family housing) and a residential building prescribed by Presidential Decree among residential buildings referred to in subparagraph 2, an amount prescribed by municipal ordinance of the relevant local government shall be imposed within the limit of 1/2 of any of the following amounts

1. Where a building has been constructed in excess of the building-to-land ratio or the floor area ratio under Articles 55 and 56, or without obtaining permission or filing a report, the amount calculated by multiplying the amount equivalent to 50/100 of the standard market value per square meter applicable to the building pursuant to the Local Tax Act by the ratio prescribed by Presidential Decree according to the details of the violation within the scope not exceeding the amount

2. Where a building falls under a building in violation of subparagraph 1, the amount prescribed by Presidential Decree according to the details of violation within the extent of 10/100 of the amount equivalent to the standard market price applicable to the building under the Local Tax Act.