[1] The measures of the competent court in a case where the enforcement fine is imposed pursuant to the Building Act that was amended to impose an administrative fine under Article 56-2 of the former Building Act

[2] Whether the measure that is subject to a fine for negligence by applying the former Building Act is illegal by applying the revised Building Act (affirmative)

[1] Article 56-2(1), (4), and (5) of the former Building Act (amended by Act No. 4381 of May 31, 1991), and Article 83(1), (4) through (6), and Article 82(3) and (4) of the amended Building Act (amended by Act No. 4381 of May 31, 191) are prepared, and Article 6 of the Addenda of the amended Building Act (amended by Act No. 4381 of May 31, 199) provides for the provisions of Article 83(1), (4) through (6), and Article 82(3) and (4) of the amended Building Act. In full view of the purpose of Article 6 of the Addenda of the amended Building Act (amended by Act No. 4381 of May 31, 191), the provisions of the amended Building Act concerning enforcement fines under the former Building Act are essentially identical to the administrative fine imposed under Article 56-2 of the former Building Act.

[2] Since a fine for negligence under the former Building Act and a charge for compelling compliance under the amended Building Act are different in terms of the upper limit and the number of times of imposition for the non-compliance with a corrective order, if a person was punished by a fine for negligence under the former Building Act, it shall not be deemed unlawful.

[1] Article 56-2 of the former Building Act (amended by Act No. 4381 of May 31, 1991); Article 83 of the Building Act (amended by Act No. 4381 of May 31, 1991); Article 6 of the Addenda; Articles 11 and 248 of the Non-Contentious Case Litigation Procedure Act / [2] Article 56-2 (1) of the former Building Act (amended by Act No. 4381 of May 31, 1991); Article 83 (1) of the Building Act (amended by Act No. 4381 of May 31, 1991); Article 6 of the Addenda

[1] [2] Supreme Court Order 94Ma2283 dated July 26, 1995 (Gong1995Ha, 2955) / [2] Supreme Court Order 95Ma1048 dated November 17, 1995 (Gong1996Sang, 24)

Sickway

Seoul District Court Order 95Ra986 dated August 1, 1996

The order of the court below is reversed, and the case is remanded to the Seoul District Court Panel Division.

The grounds of reappeal are examined.

1. Article 56-2(1), (4), and (5) of the former Building Act (wholly amended by Act No. 4381, May 31, 1991; hereinafter the same shall apply) and Article 83(1), (4) through (6), and Article 82(3) and (4) of the amended Building Act (wholly amended by Act No. 4381, May 31, 1991; hereinafter the same shall apply) are compared with the provisions of Article 6 of the Addenda of the amended Building Act. In full view of the purport of Article 52(3) and (4) of the former Building Act, the provision on charges for compelling compliance under the amended Building Act was improved on grounds of non-performance of corrective order, and thus, the fine for negligence and non-performance penalty are essentially identical to that of the former Building Act before and after the amendment, and the court’s decision to impose the fine for negligence ex officio pursuant to Article 98(1) of the former Building Act cannot impose the fine for negligence under the Non-Contentious Case Litigation Procedure Act.

2. According to the reasoning of the order of the court below, the court below paid 3,922,100 won for non-performance penalty imposed by the head of Seocho-gu on April 3, 1994 (which appears to be a clerical error of March 1994) on the part of the violation of the Building Act of this case, which was low between December 31, 1987 and April 25, 1991, and changed the use of 104.26 square meters for residential purposes, among the violation of the Building Act of this case, which was imposed by the re-appellant from around April 31, 1987 to April 25, 1991. However, the non-performance of the corrective order of this case, including the above violation, can be repeatedly imposed until the corrective order was executed within two times a year, and the fine for negligence imposed under the former Building Act was imposed on KRW 300,00,00,000,00 won for non-performance of the corrective order of this case.

3. However, if the violation of the Building Act was committed at the time of the enforcement of the former Building Act, the lower court is justifiable to have deemed that it is subject to a fine for negligence under the former Building Act, not a charge for compelling compliance under the amended Building Act, but a fine for negligence under the former Building Act. However, on the premise that the imposition of a fine for negligence under the former Building Act is not limited to the frequency of imposition, the lower court again imposed a fine for negligence by misapprehending the legal doctrine as to the fine for negligence

4. Therefore, the order of the court below shall be reversed, and the case shall be remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Cho Chang-hun (Presiding Justice)