[1] Whether the measure against the enforcement fine is illegal by applying the revised Building Act to the owner who failed to comply with the corrective order by applying the former Building Act (affirmative)

[2] Whether a fine for negligence may be imposed again on the ground of non-compliance with the pertinent corrective order after a decision not to punish the parties in a trial of a fine for negligence imposed on the ground of non-compliance with the order for correction under the former Building Act

[1] Article 6 of the Addenda to the Building Act (amended by Act No. 4381 of May 31, 1991) provides that "any disposition concerning a building in violation of the previous provisions prior to the enforcement of this Act shall be governed by the previous provisions of Article 83, notwithstanding the provisions of Article 83," and thus, a fine for negligence may be applied to a building in violation of the former Building Act (amended by Act No. 4381 of May 31, 1991) unless correction is made even after receiving a corrective order. Since the above fine for negligence and the charge for compelling compliance under Article 83 of the amended Building Act differs from the upper limit and the frequency of imposition, it is unlawful to impose a fine for negligence under the amended Building Act.

[2] If a decision not to punish a party becomes final and conclusive in a trial of a fine for negligence under the former Building Act (amended by Act No. 4381 of May 31, 1991), a fine for negligence may not be imposed on the ground of the non-performance of the pertinent corrective order.

[1] Article 56-2 of the former Building Act (amended by Act No. 4381 of May 31, 1991), Article 83 of the Building Act, and Article 6 of the Addenda (amended by Act No. 4381 of May 31, 1991) / [2] Article 56-2 of the former Building Act (amended by Act No. 4381 of May 31, 1991)

[1] Supreme Court Order 94Ma2283 dated July 26, 1995 (Gong1995Ha, 2955Ha, 2955) Supreme Court Order 95Ma1048 dated November 17, 1995 (Gong1996Sang, 24) Supreme Court Order 96Ma1597 dated April 28, 1997 (Gong1997Sang, 1610)

Re-appellant

Seoul District Court Order 96Ra1457 dated January 5, 1999

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

We examine the grounds for reappeal.

According to the reasoning of the order of the court below, the court below acknowledged that the re-appellant's non-performance penalty of KRW 2,53,730 on November 23, 1995 was imposed on the re-appellant according to the fact that the non-appellant's non-performance penalty of KRW 2,53,730 on the non-performance penalty of KRW 4.7,08 square meters on his own building located in Geumcheon-gu ( Address omitted) was in conflict with the restriction on height by increasing the height of 3,40 square meters without permission; the house tower 13.47 square meters was increased without permission; and the head of Geumcheon-gu ordered the re-appellant to correct the above violation within a reasonable period of time; the non-performance penalty of KRW 2,53,730 on November 23, 1995 was imposed on the non-performance penalty of KRW 30,000 on the non-performance penalty of the previous violation; the non-performance penalty of Article 83 can be repeatedly imposed within a period of up to two times a year from the first corrective order.

However, Article 6 of the Addenda to the amended Building Act provides that "any disposition on a building in violation of the previous provisions before this Act enters into force shall be governed by the previous provisions, notwithstanding the provisions of Article 83," and if a corrective order is not corrected even after being issued with respect to a building in violation of the former Building Act (amended by the above Act; hereinafter the same shall apply), a fine for negligence may be imposed by applying Article 56-2 of the former Building Act. Since the above fine for negligence and the charge for compelling compliance under Article 83 of the amended Building Act differs from the upper limit and frequency of imposition, it is unlawful to impose a fine for negligence under the former Building Act (see, e.g., Supreme Court Order 95Ma1048, Nov. 17, 1995; Order 96Ma1597, Apr. 28, 1997). If a decision to punish the re-appellant in a trial on the previous Building Act for non-performance of the corrective order becomes final and conclusive, it shall not be punished by the re-appellant for such reason.

According to the records, the building of this case constructed by the Re-Appellant was completed on May 12, 1992 by obtaining a building permit from the head of the Gu-gu Seoul Metropolitan Government on April 16, 1991 and completed the completion inspection on May 12, 1992 prior to the enforcement of the amended Building Act. The Re-Appellant had already been issued a corrective order on May 19, 193 by the head of the Gu-gu head of the Gu on July 26, 1991 as to the above violation of the Building Act but failed to comply with it. The Re-Appellant was subject to the imposition of a fine for negligence of KRW 2,189,010 on the ground that the latter did not comply with the corrective order on July 26, 1991; the Re-Appellant was not subject to punishment in the case of violating the Building Act around June 22, 1994. Thus, the court below should have deliberated on whether the building of this case was in violation at the time of the enforcement of the former Building Act.

Nevertheless, the court below determined that the second instance court's decision to be justified by applying Article 83 of the amended Building Act, etc., which is subject to the enforcement fine, was erroneous in the misapprehension of legal principles as to the administrative fine under the former Building Act and the enforcement fine under the amended Building Act, and failed to exhaust all necessary deliberations, on the ground that the enforcement fine can be imposed repeatedly within the limit of two times a year without examining whether the building in this case is a building in violation of the former Building Act.

There are reasons to discuss.

Therefore, without examining the remaining grounds for reappeal, the order of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jae-soo (Presiding Justice)