[1] Whether "the defendant specified the purport of the claim that "the disposition of the administrative vicarious execution order against the plaintiffs on February 20, 1997 is revoked" (affirmative with qualification)

[2] In a lawsuit seeking revocation of a disposition of dismissal by proxy, whether the prior act can assert the ground for illegality of the order of removal of a building (negative with qualification)

[1] The purport of the claim that "the defendant's action of vicarious administrative execution against the plaintiffs on February 20, 1997 is revoked." The purport of the claim that "the defendant's action of vicarious administrative execution against the plaintiffs on February 20, 1997 is sufficiently specified unless there exist several measures on the same date against the plaintiffs, and the court has rendered a ruling dismissing the claim without demanding more specific purport of the claim, and it cannot be said that the purport of the claim or the order of the judgment, which is a necessary entry of the complaint, is not specified.

[2] As long as an order to remove a building is not null and void as a matter of course, the order to remove the building, which is the preceding act, has become final and conclusive as lawful, unless the order to remove the building was filed without going through an administrative appeal or lawsuit, and thus, the order to remove the building, which is the preceding act, cannot be asserted that the building is a legitimate building, which is not an unauthorized building,

[1] Article 8 of the Administrative Litigation Act, Article 227 of the Civil Procedure Act / [2] Articles 3 and 7 of the Administrative Vicarious Execution Act, Article 19 of the Administrative Litigation Act

[2] Supreme Court Decision 75Nu218 delivered on December 9, 1975 (Gong1976, 8870) Supreme Court Decision 81Nu44 delivered on May 25, 1982 (Gong1982, 613), Supreme Court Decision 81Nu293 delivered on July 27, 1982 (Gong1982, 828)

Plaintiff 1 and one other (Attorney Kim Tae-tae, Counsel for the plaintiff-appellant)

The head of Seo-gu Gwangju Metropolitan City

Gwangju High Court Decision 97Gu2725 delivered on November 28, 1997

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

We examine the grounds of appeal.

1. As to the grounds of appeal Nos. 1 and 2 by the plaintiffs' attorney

"Revocation of the disposition of the administrative vicarious execution against the plaintiffs on February 20, 1997" means that the purport of the claim of this case is sufficiently specified unless there exist several measures on the same date against the plaintiffs, and that the court below rendered a ruling dismissing the claim without urging the plaintiff to specify more specific purport of the claim, and it cannot be said that the purport of the claim or the text of the judgment, which is a necessary entry of the complaint, is not specified. Therefore, there is no reason to argue that the court below did not clearly state the illegality of the lawsuit, the non-exercise of the right to request the statement, and the order of the decision, which is a necessary entry of the complaint.

2. As to the ground of appeal No. 3 by the plaintiffs' attorney

The application of Articles 78 and 80 of the Building Act, which provide penal provisions depending on whether a building without permission is an urban planning zone, is different. However, there is no difference in the application of Article 69 of the Building Act with regard to removal order or vicarious execution, which is the basis of the instant order disposition, and therefore, the court below did not specify the location of the building as to whether it is an urban planning zone. Thus, there is no error in the misapprehension of legal principles as to the building law, such as lack of reason, incomplete

3. As to the plaintiffs' ground of appeal Nos. 4 and 6

According to the records, the part of the building of this case, which was subject to the instant disposition, is not included in the part of the use inspection following the alteration of purpose of use, and is a building newly constructed regardless of the permission for the alteration of purpose of use or usage inspection, and is recognized as an unlawful building. The judgment of the court below to the same purport does not err in the misapprehension of judgment or the exercise

4. As to the grounds of appeal No. 5 of the plaintiffs and the plaintiffs' grounds of appeal against the rules of evidence

According to the records, it is evident that the reason why the plaintiffs were suspected of having no suspicion against the plaintiffs in the case of violating the Building Act against the plaintiffs was that the above plaintiff 2 was not aware of all of his husband and that it is insufficient to recognize whether the plaintiff 1 had performed an extension of the part of the building of this case with respect to the plaintiff 1, and as long as the part of the building of this case is an illegal building constructed without permission, etc., it is an owner, manager, or occupant under Article 69 (1) of the Building Act. It is obvious that the plaintiffs are obligated to remove as the owner, manager, or occupant of the building of this case. There is no error of law by misapprehending the rules of experience or by mismisunderstanding facts contrary to the rules of evidence.

5. As to the ground of appeal No. 7 of the plaintiffs' representative and the ground of appeal No. 7 of the plaintiffs

According to the annexed drawings cited by the court below, whether the building in this case is an unauthorized building, its reputation, appearance, location, etc. can be sufficiently verified, and it is not necessarily necessary to conduct on-site inspection in specifying this. It cannot be said that there was an error of law in the court below's incomplete deliberation.

6. As to the ground of appeal No. 8 by the plaintiffs' attorney

As long as the Plaintiff 2 is the owner of the instant building, he/she is obligated to remove the building pursuant to Article 69(1) of the Building Act. The part of the instant building was constructed prior to the acquisition of co-ownership by the said Plaintiff, and it does not vary because the said Plaintiff was not involved in the said construction. We do not agree with the reasoning of the lower judgment that there was an error of misapprehending the entries in the No. 3-2 (Register of Copy)

7. Of the grounds of appeal by the plaintiffs, there is a misapprehension of legal principles as to the effect of the disposition on the guidance and dismissal of the preceding order among the grounds of appeal by the plaintiffs, and the ground of appeal by the plaintiffs regarding

If an order to remove a building is not void as a matter of course, if an administrative appeal or a lawsuit is filed and the procedure to seek the illegality thereof is not followed, the order to remove the building, which is the preceding act, has become final and conclusive as legitimate. Thus, in the disposition of a vicarious performance, which is the latter act, the building shall not be asserted that it is a legitimate building, not an unauthorized building, or shall not be recognized as such (see Supreme Court Decisions 81Nu44, May 25, 1982; 81Nu293, Jul. 27, 1982).

In this case where there is no evidence that the order to remove the building of this case is deemed null and void as a matter of course (the part of the building of this case is an unlawful building, and it cannot be deemed null and void as a matter of course because it did not state the period of objection to the order to remove). In the same purport, the court below determined that the plaintiffs cannot dispute the order for removal of this case on the ground of illegality as long as it is impossible for them to dispute without going through the litigation procedure against the above order, and there is no error in the misapprehension of legal principles as to the influence of the order for removal of this case on the relay of the preceding order. The argument is

8. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jae-soo (Presiding Justice)