[1] In a case where a person subject to a disposition or an order to take measures under Article 77 (1) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents violates it, whether such disposition or order to take measures is required to be lawful in order to punish him under Article 89 (12) of the same Act (affirmative)

[2] The scope of "disposition cancellation, modification or suspension, and order for discontinuance and modification of construction" which the head of a Si/Gun may issue against a specialized management business operator who is not a project implementer pursuant to Article 77 (1) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents

[1] Where a project implementer or a specialized maintenance project manager who has been ordered to revoke, alter, or suspend a disposition or suspend construction works pursuant to Article 77 (1) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 7392 of Mar. 18, 2005), violates the order, the order must be legitimate to punish the person under Article 85 subparagraph 12 of the Act, and even if the disposition is not void as a matter of course, the violation of Article 85 subparagraph 12 of the same Act cannot be established as long as it is acknowledged as an illegal disposition.

[2] In full view of the provisions of Articles 69(1), 70 subparag. 1, and 77(1), etc. of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 7392 of Mar. 18, 2005), the head of a Si/Gun may issue an order for cancellation, alteration, or suspension of, or alteration to, a disposition against a specialized maintenance business operator who is not a project implementer, to a specialized maintenance business operator who is not a project implementer. The order is limited to the case where the order is related to the matters entrusted by the committee or the association by the relevant specialized maintenance business operator, and otherwise, the order is not an order for the specialized maintenance business operator to suspend or modify the construction.

[1] Articles 7 (1) and 85 subparagraph 12 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 7392 of March 18, 2005) / [2] Articles 77 (1) and 85 subparagraph 12 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 7392 of March 18, 2005)

[1] Supreme Court Decision 90Do1709 delivered on August 18, 1992 (Gong1992, 2790) Supreme Court Decision 96Do1237 delivered on July 12, 1996 (Gong1996Ha, 2575) Supreme Court Decision 2001Do2841 Delivered on May 14, 2004 (Gong2004Sang, 1031)

Defendant

Prosecutor

Seoul Southern District Court Decision 2006No822 Decided October 20, 2006

The appeal is dismissed.

The grounds of appeal are examined.

Article 77(1) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 7392, Mar. 18, 2005; hereinafter referred to as the "Act"), where a project implementer or a specialized maintenance and improvement project manager who has been ordered to cancel, modify, or suspend construction works, violates the provisions of Article 85 subparagraph 12 of the Act, the order shall be legitimate; and even if such disposition is not null and void, it shall not be deemed an unlawful disposition (see, e.g., Supreme Court Decisions 90Do1709, Aug. 18, 1992; 201Do2841, May 14, 2004; hereinafter referred to as the "Special Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, etc."), and the head of a Si/Gun/autonomous Gu’s order to suspend the construction of, or to suspend the construction of, the improvement project by proxy or to take measures necessary for the improvement project (see, etc.).

According to the evidence duly adopted by the court below, among the above improvement projects implemented by the Gangseo-gu Seoul Metropolitan Government Association for the Maintenance and Improvement Project for 1003-1 and 34 lots of ground improvement projects (hereinafter "the cooperative of this case"), "the removal of existing buildings prior to the authorization of the management and disposal plan" at issue in this case was arbitraryly performed by the non-indicted 1 corporation which was subcontracted the part of the removal project at the above improvement project through the Daelim Industrial Co., Ltd., and the defendant, who is the specialized manager of the improvement project, was not authorized to perform the removal project as well as the above removal project, was not authorized to direct and supervise the removal project to implement or suspend the removal project. Thus, the head of Gangseo-gu Office's order to suspend the construction project of this case on or around December 2004 and January 11, 2005, it cannot be acknowledged that the defendant did not comply with the order to suspend the removal project of this case by collusion with the above illegal removal project (Article 715 (1)7) of the Act).

The court below's reasoning is just in its conclusion that the expression is somewhat inappropriate in this point, but it is not erroneous in the rules of evidence or in the misapprehension of legal principles as to the interpretation and application of Article 77 (1) and Article 85 (12) of the Act.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)