Where a person liable to receive an order for performance following a non-performance of obligation to use land under the National Land Planning and Utilization Act complies with such order after the lapse of the period stipulated in the implementation order, whether the first enforcement fine due to the non-performance of obligation can be imposed (negative)

Article 124-2(5) of the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”) provides that the imposition of a new non-performance penalty may not be imposed in cases where the intended purpose of securing the performance due to the imposition of a non-performance penalty is already realized. The “new non-performance penalty” in which the imposition is suspended includes not only a non-performance penalty imposed repeated under Article 124-2(3) of the National Land Planning and Utilization Act but also the first non-performance penalty due to the non-performance of the obligation to perform the obligation. Therefore, where the obligor in receipt of the order complies with the order, the first non-performance penalty may not be imposed even after the lapse of the period prescribed by the order to perform the obligation to perform the obligation.

Articles 124(1), 124-2(1), (2), (3), (4), (5), and (8) of the National Land Planning and Utilization Act; Article 124-3(5) of the Enforcement Decree of the National Land Planning and Utilization Act

Plaintiff (Attorney Han-soo et al., Counsel for defendant-appellant)

The head of Suwon-si Office

Seoul High Court Decision 2012Nu34008 decided July 5, 2013

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. According to the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”), a person who has obtained permission for a land transaction contract shall use the land for the permitted purpose (Article 124(1)), and the head of a Si/Gun/Gu may order a person who fails to perform his/her duty to utilize the land as a result thereof to perform such duty within a reasonable period fixed (Article 124-2(1)), and a enforcement fine shall be imposed (Article 124-2(2). The head of a Si/Gun/Gu may repeatedly impose and collect an enforcement fine on and from a person who fails to perform such duty once a year from the date when the first order was issued to fulfill the obligation to use the land until the implementation order is fulfilled (Article 124-2(3) and (4)), and if the person ordered to perform such order complies with such order, he/she shall, in advance, immediately suspend the imposition of a new enforcement fine and collect the enforcement fine prior to the implementation fine (Article 124-2(3) and (4) of the Enforcement Decree).

According to the language and text of the National Land Planning Act and the structure of such provisions regarding the order to use land and the imposition of enforcement fines upon the person who obtained permission for a land transaction contract under the National Land Planning and Utilization Act, enforcement fines under the National Land Planning Act are not sanctions against past violations, such as non-performance of obligation to use land, and are not imposed upon the person who acquired the land by obtaining permission for a land transaction contract, and notify the fact that enforcement fines are imposed if he/she fails to perform his/her obligation within the implementation period, thereby giving psychological pressure to the person responsible for performance and indirectly compelling the performance of obligation. In addition, Article 124-2(3) of the National Land Planning and Utilization Act requires that “the head of a Si/Gun/Gu may repeatedly impose and collect enforcement fines until the implementation period is fulfilled” under Article 124-2(5) of the National Land Planning and Utilization Act to require the first enforcement period to be imposed upon the person who fails to perform the order to enforce the National Land Planning and Utilization Act even if the first enforcement period is not known prior to the imposition and collection of enforcement fines.”

2. Nevertheless, the court below interpreted that the first enforcement fine does not affect the imposition of enforcement fine even after the lapse of the period stipulated in Article 124-2(5) of the National Land Planning and Utilization Act, and interpreted that the order was fulfilled after the lapse of the period stipulated in the implementation order. Thus, the court below held that the disposition imposing enforcement fine in this case cannot be deemed unlawful even if the plaintiff constructed a house after the expiration of the period stipulated in the implementation order, so long as it is found that the plaintiff failed to comply with the implementation order within the designated period, and did not examine and determine whether the above house construction can be deemed to have

The judgment below erred by misapprehending the legal principles on the interpretation of Article 124-2(5) of the National Land Planning and Utilization Act and the requirements for imposing enforcement fines under the National Land Planning and Utilization Act, which affected the conclusion of the judgment.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench

Justices Shin Young-chul (Presiding Justice)