2011Guhap5811 Revocation of Disposition of Imposing a non-performance penalty

○ Kim

Busan Northern-gu 00 Dong

The head of Gangseo-gu Busan Metropolitan Government

Law Firm Gangnam-gu et al.

Attorney Kim Ho-ho

April 26, 2012

May 24, 2012

1. The Defendant’s imposition of KRW 50,830,00 in total against the Plaintiff on August 17, 2011 shall be revoked.

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

The order is as set forth in the text.

1. Details of the disposition;

A. On May 201, the Plaintiff, a development-restricted zone of Gangseo-gu, Busan Metropolitan City, ○○○○○○, ○○○○○, 213m (hereinafter referred to as “instant land”) loaded goods such as scrap iron, etc., and constructed and used a container office.

B. On May 6, 201, the Defendant issued a corrective order to the Plaintiff to reinstate the said scrap metal or other goods and container construction in violation of Article 12 of the former Act on Special Measures for Designation and Management of Development Restriction Zones (amended by Act No. 10599, Apr. 14, 201; hereinafter “Act on Special Measures for Designation of Development Restriction Zones”) and Article 14 of the Building Act (hereinafter “instant corrective order”) until June 7, 2011. The Plaintiff did not correct the order. On June 9, 2011, the Defendant imposed a non-performance penalty on the Plaintiff pursuant to Article 30-2 of the Act on Special Measures for Designation and Management of Development Restriction Zones. Accordingly, the Defendant imposed a non-performance penalty on the Plaintiff on the first day of June 9, 2011, to present its opinion on the imposition of a non-performance penalty by no later than July 9, 2011.

C. As the Plaintiff still did not rectify, on August 17, 201, the Defendant rendered a disposition imposing KRW 50 million for enforcement fines, and KRW 830,000 for enforcement fines for container construction (hereinafter referred to as the “disposition in total of the above enforcement fines”).

[Ground of recognition] Facts without dispute, Gap evidence 1-2, Eul evidence 1-3, Eul evidence 6-1-3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. According to the Plaintiff’s assertion 1), in order to take the instant disposition, the Defendant issued the instant disposition by setting a reasonable period in advance to the Plaintiff, and the Defendant did not implement the instant disposition by setting a reasonable period of time, and thereafter, issued the instant disposition to the Plaintiff, which is subject to the imposition of enforcement fines, only when it is not performed despite the previous disposition. However, since the Plaintiff issued the instant disposition without going through the aforementioned procedure, the instant disposition was unlawful.

2) In substance, the Plaintiff applied for the relocation of a complex to ○○○○○○○○ located in Gangseo-gu Busan Metropolitan City, and thus, constitutes a person subject to postponement of imposition of enforcement fines under Article 41-2(2) of the Development Restriction Zone Act, the instant disposition that imposed enforcement fines on the Plaintiff is unlawful. In addition, the Plaintiff constitutes a simple living offender, and thus, the enforcement fines should be mitigated pursuant to the Enforcement Decree of the Development Restriction Zone Act [Attachment 5]. Therefore, the instant disposition is excessively unlawful.

(b) Fact of recognition;

1) On May 6, 2011, the Defendant issued the instant corrective order to the Plaintiff, as follows, under the title “the corrective order against unlawful acts”.

【Correction Order for Illegal Acts】

1. The thickness is known to the effect that the provisions of Article 12 of the Development Restriction Zone Act (restricted Acts in Development Restriction Zones) and Article 14 of the Building Act (Building Report) are violated, and 2. The period during which the corrective order is issued pursuant to Article 30 of the Development Restriction Zone Act (Administrative Disposition against Violators of Acts and subordinate statutes, etc.) and the period during which the voluntary restoration is made until June 7, 201.

3. It is known that, if not restored to the original state within the given period, it would be subject to continuous administrative measures, such as the imposition of enforcement fines, until the tort is corrected.

Finally, Doz. Doz. Doz. Doz. Doz.

2) The instant corrective order was accompanied by a chief inspector (hereinafter “the instant order”). However, the main contents are as follows.

[Attachment-gu] The term of guidance: May 6, 2011 to June 7, 2011

The above act is against Article 12 of the Development Restriction Zone Act and Article 14 of the Building Act, and the period of voluntary restoration to the original state within the period of guidance under the relevant provisions, and it is known that the Plaintiff failed to implement the instant enforcement order, including the imposition of enforcement fines, every year, if it does not restore to the original state within the period of time.

【Pre-Announcement of Imposition of Enforcement Fines】

1. The disposal of enforcement fines pursuant to the provisions of Article 12 of the Development Restriction Zone Act and Article 14 of the Building Act on the following illegal acts: 2. The disposal of enforcement fines pursuant to the provisions of Article 30-2 of the Development Restriction Zone Act was made, the restoration to the original state, or the submission of opinions according to the attached form (the imposition of enforcement fines* the submission of opinions according to the imposition of enforcement fines) was made accurately and the shipment period was made with the construction of Gangseo-gu by July 9, 201.

3. The content of the offense. If no opinion is presented within the above period, it shall be deemed that there is no disagreement, and the charge for compelling compliance shall be notified that it will be repeatedly imposed each year on the basis of the date of the first corrective order, until the corrective order is complied with.

1. A list of the details of the charge for compelling the performance of 2011 ( Kim○-○)

2. The form of submission of opinions following the imposition of charges for compelling compliance.

[Ground of recognition] Facts without dispute, Eul evidence Nos. 2, Eul evidence Nos. 6-1, and the purport of the whole pleadings.

1) Article 30-2(1) of the Development Restriction Zone Act provides that “The head of a Si/Gun/Gu shall impose a non-performance penalty not exceeding KRW 100 million on a person who has received a corrective order under Article 30(1) and fails to comply with the corrective order within the corrective period.” In addition, Article 30-2(2) of the same Act provides that “The head of a Si/Gun/Gu shall notify in writing that the non-performance penalty should be imposed and collected if the person fails to comply with the corrective order by the specified period prior to the imposition of the non-performance penalty under paragraph (1).”

Meanwhile, Article 30 (1) of the Development Restriction Zones Act provides that "the head of a Si/Gun/Gu may revoke permission if he/she finds any of the following acts, and may order the relevant offender (including the owner, manager, or occupant of the land of a building or structure used for the violation; hereinafter "offender, etc.") to suspend construction or to remove, rebuild, or relocate the building, structure, etc. or to take other necessary measures (hereinafter "order for correction") within a reasonable time specified by the relevant offender." "The proviso to Article 12 (1) or Article 13 provides that "the construction of a building, the alteration of the purpose of use of a structure, the installation of a structure, the alteration of the form and quality of land, the division of land, the storage of articles, the cutting of bamboo and trees, or the implementation of an urban planning project without obtaining permission under the proviso to Article 12 (1) or Article 13 or in violation of the terms of permission."

B) According to the above provisions regarding the imposition of charges for compelling the performance, the head of the Gu, etc. shall first impose charges for compelling the performance on the object of illegal construction or change of the form and quality of land: (i) order the offender to correct the violation by setting up a reasonable period pursuant to Article 30(1) of the Development Restriction Zone Act; (ii) order to correct the violation; (iii) order to impose and collect charges for compelling the performance in advance if the person fails to comply with the order within the given period, set a reasonable period pursuant to Article 30-2(2) of the Development Restriction Zone Act; and (iv) order to impose charges for compelling the performance in accordance with Article 30-2(1) of the Development Restriction Zone Act, if the person fails to comply with the order within the implementation period specified in

2) We examine the instant case in light of the aforementioned legal doctrine.

According to the facts found above, the defendant issued the instant corrective order for a reasonable period on May 6, 201 by issuing the instant corrective order for a reasonable period of time. However, it is questionable whether the instant order constitutes "legal guidance" under Article 30-2 (2) of the Development Restriction Zone Act, first of all, whether the head of the instant order constitutes "legal guidance" under Article 30-2 (2) of the Development Restriction Zone Act, when the period of the instant order was elapsed and the submission of opinions again after the prior notice of the imposition of the instant charge for compelling compliance was passed, and the period of submission of opinions is over the same period.

On the other hand, as seen earlier, the provisions of the law stipulate that the order of correction shall be made in writing only if the order of correction is not issued and the order of correction is not issued. Since the order of correction in this case was attached to the order of correction in this case, the letter of guidance in this case does not coincide with the above provisions of the law.

Even if it is deemed that only one document will provide a correction order and an appeal, it shall meet all the requirements for the correction order and an appeal under Articles 30(1) and 30-2(2) of the Development Restriction Zone Act, and according to the provisions of the above Act, if the correction is not made after the issuance of the correction order within a reasonable period of time, it shall be notified again for a reasonable period of time.

It is interpreted that a considerable period of time should be granted twice. However, since the highest period of the instant order for correction is given to the same period as that of the instant order for correction (not later than June 7, 201), it is difficult to view it as a legitimate guidance under the said provision.

B) On the other hand, we examine whether the pre-announcement of the instant charge for compelling the performance falls under "legal guidance" under Article 30-2 (2) of the Development Restriction Zone Act.

As seen earlier, Article 30-2(2) of the Development Restriction Zone Act provides that a prior notice shall be given to the effect that a charge for compelling the performance should be imposed and collected if the performance is not performed within a considerable period of time. However, as the pre-announcement of the imposition of the instant charge for compelling the performance should be imposed on July 9, 201, it includes only the content that the Plaintiff would have restored to the original state by July 9, 201, or would have different opinions as to whether it is true or not. Thus, it is reasonable to deem the period of “before July 9, 2011,” and it is difficult to interpret it as a considerable period of time to implement the corrective order. Accordingly, the pre-announcement of the imposition of the instant charge for compelling the performance cannot be deemed a lawful guidance.

3) Sub-decisions

The imposition of enforcement fines must be conducted transparently and clearly in accordance with legitimate procedures through an administrative disposition imposing an obligation on the citizens. The instant disposition was conducted without legitimate guidance. Therefore, the Plaintiff’s remaining arguments regarding the substantive illegality of the instant disposition should be determined by no further need to be determined.

3. Conclusion

Then, the plaintiff's claim is reasonable, and it is decided as per Disposition.

Judges Kim Sang-hoon

Judges Yoon Jin-jin

Judge Hwang-man