Order of removal and specific part of the object of vicarious execution in the disposition of vicarious execution;

In a case where the illegally extended part of a building is attached to the death or side of the existing building, and it is hard to clearly distinguish the extended part from the existing building by appearance, and where the removal is made in whole to the extent that it might cause damage to the entire building, it is difficult to specify the object of removal in detail, and it is illegal disposition that is impossible to execute it. However, in a case where the unauthorized extension part of the building is clearly distinguishable from the unauthorized extension part of the building, and it is recognized that the removal of the part is possible, it cannot be deemed that the removal part is not specified on the ground that the area of the extended part was written differently from the actual area in the order of removal and vicarious execution from the dispositions of the building for vicarious execution.

Article 3 (1) of the Administrative Vicarious Execution Act

Plaintiff

The head of Jung-gu Seoul Metropolitan Government

Seoul High Court Decision 86Gu383 delivered on October 14, 1987

The part of the judgment of the court below against the defendant revoked the disposition of vicarious dismissal on the fourth floor extension of the building on the ground in Jung-gu, Seoul, and that part of the case is remanded to the Seoul High Court.

The defendant's remaining grounds of appeal are dismissed, and the costs of appeal concerning the dismissal of appeal are assessed against the defendant.

The grounds of appeal by the defendant litigant are examined.

1. According to the evidence employed by the court below, on December 3, 1984, the plaintiff changed the roof of the building of this case from the defendant to flat slab, removed the front wall and installed the pole with permission for large-scale repair of the 1,20.86 square meters in each size, 42.50 square meters in size and 79.16 square meters in size on the 3rd floor, and extended the 163.38 square meters in total floor area without permission. However, on January 8, 1986, the defendant determined that the removal order of the 1,2, and 30 square meters in size and the 40 square meters in size without permission of the 40 square meters in size and the 40 square meters in size without permission of the 4th floor, and that the removal order of this case and the removal order of the 1,240 square meters in size and the removal order of the 1,000 square meters in fact cannot be seen to be unlawful, and that the removal order of the 1,0024 square meters in fact.

2. According to the records, the extension portion of the 1,2 and 3th floor of the above unauthorized extension portion is a reinforced concrete building which is attached to the death or side of the existing building, and it is hard to clearly distinguish the extension portion from the appearance of the existing building, and the removal of the building is likely to cause damage to the entire building. Thus, the judgment of the court below on this part is justified, since the defendant's act of removing and giving an order for vicarious execution by indicating the extension portion clearly different from the location and size of the actual extension portion is not specific, but it is impossible to specify the removal object specifically, and it is a disposition for which execution is impossible in reality.

3. However, according to the evidence Nos. 1 through 8 without dispute as to the establishment, and the testimony of the non-party witness of the court below, the extension part of the fourth floor among the building in this case is extended on the rooftop of the original 3rd floor building, and the extension part of the 4th floor is clearly identified in appearance and it is possible to remove that part because it is made a menter brick, and it is recognized that it is possible to remove that part. Thus, even if the vicarious order and vicarious execution disposition in this case indicate that the removal order and vicarious execution are about 40 square meters, it does not mean only 40 square meters of the extension part of the 4th floor which is a part of the extension part of the 4th floor which is the whole extension part of the 3th floor. Thus, it cannot be viewed that the defendant stated the area of the extension differently from the actual area of the 4th floor and thus, it cannot be viewed that the removal part was not specified.

Ultimately, even though the appeal on the extension of the above fourth floor among the buildings of this case is legitimate, the judgment of the court below that revoked the above part is erroneous in the misapprehension of the specific interpretation of the administrative disposition, which affected the conclusion of the judgment, and it is just in this regard.

4. Therefore, among the part against the defendant in the judgment below, the part ordering the revocation of the disposition of vicarious dismissal on the extension of the fourth floor among the above ground buildings in Jung-gu, Seoul. This part of the case is remanded to the court below. The defendant's remaining grounds of appeal are without merit. The costs of appeal on this part are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jae-seok (Presiding Justice)