The case reversing the judgment of the court below which dismissed the lawsuit on account of its illegality without asking a tin, in case where the second appeal is indicated in the purport of the claim that is not the subject of an appeal for revocation, and thus, it is unlawful, such as non-exercise of the right to request tin.

The case reversing the judgment of the court below which dismissed the lawsuit on the ground that the second order for removal and the second order for vicarious removal of the extended part of the building could not be the subject of an appeal litigation in case the plaintiff voluntarily removed the extended part by a certain time in the form of sending the second order for removal and the second order for vicarious removal of the building within a certain period, but if the plaintiff filed a lawsuit for relief on the ground that the order for removal and the second order for vicarious removal of the extended part are illegal, it cannot be said that it is clear whether it is only the subject of the second order or the subject of the first order for removal, even though it is indicated in the purport of the purport of the purport of the claim.

Articles 2 and 3 of the Administrative Vicarious Execution Act, Article 8 of the Administrative Litigation Act (Article 126 of the Civil Procedure Act)

[Plaintiff-Appellant-Appellee] Plaintiff 1 and 1 other (Law Firm Domin, Attorneys Park Jae-soo and 1 other, Counsel for plaintiff-appellant-appellee-appellant-appellee-appellant-Appellee-Appellant-Appellee-Appellant-Appellee-Appellee-Appellant-Appellee-Appellee-Appellant-Appellee-Appellee-Appellant-Appellee-Appellee-Appellant-Appellee-Appellee-Appellant-Appellee-Appellee-Appellant-Appellee-Appellee-Appellant-Appellee-Appellee-Appellee-Appellant-Appellee-Appellee-Appellant-Appellee-Appellee-Appellant-Appellee-Appellee-Appellee-Appellant-Appellee

[Defendant-Appellee] Plaintiff 1 and 1 other

Attorney Lee Jae-ho et al., Counsel for plaintiff-appellant

Seoul High Court Decision 90Gu8246 delivered on May 9, 1991

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

The grounds of appeal are examined as follows. (The supplemental statement of the grounds of appeal is to the extent of supplement in the grounds of appeal.)

According to the reasoning of the judgment below, the court below acknowledged the following facts based on the following evidence that the defendant ordered the plaintiff to remove the extended portion within 20 days on January 13, 1990 under Article 21 of the Urban Planning Act and Articles 2 and 3 (1) of the Administrative Vicarious Execution Act, and notified the plaintiff that the plaintiff will voluntarily remove the extended portion until February 28 of the same year in the form of sending the second order to remove the extended portion again as of February 28 of the same year when the plaintiff failed to comply with it by the time limit, and notified the plaintiff that the removal obligation under the Administrative Vicarious Execution Act should also be executed by the plaintiff's order to remove and order the extended portion within 20 days on January 13, 190. The second order of the plaintiff's revocation by the lawsuit of this case is not a new obligation to remove the extended portion, but a new obligation to remove the extended portion after the time limit of this case is unlawful.

According to the court below's decision that the second appeal cannot be the subject of an appeal litigation, the plaintiff can recognize the fact that the plaintiff filed the lawsuit of this case for relief on the ground that the removal order and the vicarious appeal order for the above extension are unlawful. In such a case, even if the plaintiff stated the second appeal order for the purpose of seeking revocation in the purport of the claim, it cannot be said that it is clear whether this is only the subject of the second appeal disposition or the subject of the first appeal disposition, and therefore, the court below should have deliberated upon the plaintiff after deciding whether it is subject to either the second appeal order or the first appeal order.

The court below, without taking such measures, deemed that only the second disposition was subject to the second disposition without taking such measures, and determined as above, the court below committed an unlawful act that affects the judgment through the exercise of right to request for clarification and the incomplete hearing, and therefore, it is reasonable to discuss the error.

Therefore, 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.

Justices Kim Sang-won (Presiding Justice)