The meaning of Article 6 of the Addenda to the Building Act (amended by Act No. 486, May 31, 1991); and whether the measures imposed upon a project owner who fails to comply with a corrective order shall be punished by a fine for negligence by applying the former Building Act (affirmative)

Article 6 of the Addenda of the former Building Act (amended by Act No. 4381 of May 31, 1991) which was amended and enforced from June 1, 1992 (hereinafter referred to as the "former Building Act") provides that "the disposal of a building in violation of the previous provisions prior to the enforcement of this Act shall be governed by the previous provisions, notwithstanding the provisions of Article 83 (Compulsory Performance Money), with respect to the disposal of the building in violation of the previous provisions." This is unlawful in the previous Building Act (hereinafter referred to as the "former Building Act") where the building in violation of the former Building Act (amended by Act No. 4381) is maintained or used as it is under the revised former Building Act (hereinafter referred to as the "former Building Act") and is not corrected, if it is not corrected, it shall be punished by a fine for negligence by applying Article 56-2 of the former Building Act. The provisions concerning the charge for compelling execution of the amended Building Act (amended by Act No. 4381 of June 1, 1992).

Article 56-2 of the former Building Act (amended by Act No. 4381 of May 31, 1991); Article 83 of the Building Act; Article 6 of the Addenda (amended by Act No. 4381 of May 31, 1991)

Supreme Court Order 95Ma1048 Decided November 17, 1995 (Gong1996Sang, 24) Supreme Court Order 96Ma1597 dated April 28, 1997 (Gong1997Sang, 1610) Supreme Court Order 9Ma317 dated March 8, 200 (Gong200Sang, 1128)

[Judgment of the court below]

Seoul Central District Court Order 2003Ra132 dated October 8, 2004

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

1. Factual basis

According to the records, the head of Guro-gu Office issued a corrective order on August 31, 2001 to correct the act of violating the Building Act, which was extended without permission by the warehouse of the fourth floor and the third floor, among the buildings owned by the Guro-gu in Seoul (SY omitted) (hereinafter “the building in this case”), as the multi-family house, the multi-family house of the third floor is the multi-family house, and the multi-family house is the multi-family house. On August 31, 2001, with respect to the act of violating the Building Act for which the warehouse of the fourth floor and the fourth floor has been extended without permission, the head of Guro-gu Office issued a corrective order to the Re-appellant for a reasonable period fixed, and imposed the enforcement fine due to the non-performance of the corrective order on February 15, 200, on April 3, 2002.

2. As to the first ground for reappeal

Article 6 of the Addenda of the former Building Act (amended by Act No. 4381, May 31, 1991; hereinafter referred to as the "former Building Act") which was amended from June 1, 1992, provides that "the disposal of a building in violation of the previous provisions prior to the enforcement of this Act shall be governed by the previous provisions, notwithstanding the provisions of Article 83 (Compulsory Performance Money), with respect to the disposal of the building in violation of the previous provisions." This is unlawful by applying Article 56-2 of the former Building Act to a disposition of maintaining or using a building in violation of the previous provisions of the former Building Act (amended by Act No. 4381, May 31, 1991; see, e.g., Supreme Court Order 98Ma197, Apr. 19, 198; 2009Ma197, Apr. 19, 197).

In light of the records, the building of this case owned by the re-appellant is a building, the ownership of which was acquired after completion inspection by the head of the Gu on September 8, 1989, which was before the enforcement date of the "former Building Act" after obtaining a construction permit from the head of the Gu on November 2, 1988. After that, the building of this case was transferred to non-applicant 2 and non-applicant 3 in sequence in order, the re-appellant acquired ownership after being awarded a contract in the auction procedure of real estate rent on May 11, 2001. The use of the building of this case was changed to a multi-family house on March 8, 1993. However, since many lessees had resided in the second floor prior to the enforcement date of the "former Building Act", it seems that there was room for the change of the use of the second floor as a multi-family house prior to the enforcement date of the above Building Act, and there was no limit of 10% of the changed use charges or 80% of the changed enforcement date.

In light of the above legal principles, the court below should have examined whether the previous owner, possessor, etc. of the building of this case was conducted at the time of the enforcement of the former Building Act or by other reasonable means on the basis of ex officio detection of facts and examination of evidence under Article 11 of the Non-Contentious Case Litigation Procedure Act, and should have determined whether the provisions of Article 56-2 of the former Building Act apply to non-performance of corrective order for the violation.

Nevertheless, even according to the provisions of Article 6 of the Addenda to the "former Building Act", the court below imposed a non-performance penalty on the re-appellant on the ground that the Re-Appellant may impose a non-performance penalty under the current Building Act as long as the Re-Appellant continues to use it after the use of the building in this case was changed. Ultimately, there is an error of law by misapprehending the legal principles on fines for negligence under the former Building Act, the non-performance penalty under the Building Act, and Article 6 of the Addenda to the "former Building Act", and failing to examine whether the building in this case is a building in violation

3. Conclusion

Therefore, without examining the remaining grounds for reappeal, the order of the court below shall be reversed, and the case shall be 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 Park Si-hwan (Presiding Justice)