[1] Whether the alteration of use is unlawful in a case where, although a report of alteration of use is not subject to the former Building Act, the purpose of the building that requires an application for alteration of the entries in the building ledger is changed and the application for alteration of entries in the building ledger is not filed (affirmative

[2] Whether an act of using a modified building is also included in the alteration of use under the Building Act (affirmative), and the laws and regulations which form the basis for determining the legal nature of an unlawful state due to the alteration of use

[3] The case holding that in a case where Gap did not apply for a change of use under the former Building Act, but did not apply for a change of use in the original use of a building due to the amendment of the former Building Act, and the administrative agency issued a corrective order on the ground that the above building constitutes an illegal building in violation of the duty to report a change of use, and imposed a non-performance penalty due to non-performance of a corrective order, the judgment below erred in the misapprehension of legal principles, although the disposition is legitimate

[1] Article 14(4) of the former Building Act (amended by Act No. 7696, Nov. 8, 2005) provides that a person who intends to change the use of a building, not subject to a report of change, shall apply to the head of a Si/Gun/Gu for the change of the entries in the building ledger. Therefore, even if any change in the use of a building is subject to an application for change of the entries in the building ledger, unless an application for change of the entries in the building ledger is actually filed, the change in its use cannot be

[2] The alteration of use under the Building Act includes not only a type of alteration but also an act of using a building, the purpose of use of which is altered. Therefore, a building for which a legitimate alteration of use has not been completed shall continue to be unlawful until it restores its original state or completes lawful alteration of use, and the legal nature of its unlawful state shall be determined by the Building Act and subordinate statutes enforced at the time of the issue of the legal nature,

[3] The case holding that the court below erred in the misapprehension of legal principles on the ground that, in a case where Gap did not actually apply for the change of purpose under the former Building Act (amended by Act No. 7696 of Nov. 8, 2005), but did not apply for the change of purpose of use in the neighborhood living facilities where Gap applied for the change of purpose of use in the building ledger, the former Building Act was amended and the use of the above building is subject to the report of change of purpose of use, and the administrative agency issued a corrective order on the ground that the above building constitutes illegal buildings in violation of the duty to report the change of purpose of use, and a non-performance penalty is imposed on Gap due to non-performance of the corrective order, the above building cannot be deemed as a legitimate building unless the Gap applied for the change of purpose of use at the time of the enforcement of the former Building Act, and the illegal condition is maintained before the restoration of the above building or the lawful procedure

[1] Article 14 (4) (see current Article 19 (3)) of the former Building Act (amended by Act No. 7696 of Nov. 8, 2005) / [2] Article 14 (see current Article 19) of the former Building Act (amended by Act No. 7696 of Nov. 8, 2005) / [3] Article 14 (4) (see current Article 19 (3)) of the former Building Act (amended by Act No. 7696 of Nov. 8, 2005), Article 14 (2) (see current Article 19 (2)) of the former Building Act (amended by Act No. 8852 of Feb. 29, 2008), Article 14 (3) (see current Article 19 (3)), and Article 19 (3) (see current Enforcement Decree of the Building Act) of the former Building Act (amended by Presidential Decree No. 1964 of Apr. 16, 2006)

[2] Supreme Court Decision 2002Do5396 decided Dec. 24, 2002 (Gong2003Sang, 553)

[Judgment of the court below]

Head of Dongdaemun-gu Seoul Metropolitan Government

Seoul High Court Decision 2009Nu18945 decided April 8, 2010

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

The grounds of appeal are examined.

1. Article 14(4) of the former Building Act (amended by Act No. 7696, Nov. 8, 2005; hereinafter the same) provides that a person who intends to change the use of a building that is not subject to a report of change of use shall file an application for change of the entries in the building ledger with the head of the Si/Gun/Gu (hereinafter “application for change of use”). Therefore, even if any change of use in the building is subject to an application for change of use, unless the application for change of use is actually filed, the change of use cannot be deemed lawful.

Meanwhile, an alteration of use under the Building Act includes not only a tangible alteration of use but also an act of using a building, the purpose of which has been altered (see Supreme Court Decision 2002Do5396, Dec. 24, 2002). Therefore, a building for which a legitimate alteration of use has not been completed shall continue to be unlawful until it restores its original state or completes lawful alteration of use, and the legal nature of such unlawful state shall be determined by the Building Act and subordinate statutes enforced at the time of the issue, unless there are special circumstances.

2. Review of the reasoning of the lower judgment and the record reveals the following circumstances.

On April 14, 2002, the Defendant: (a) determined the use of the second or fourth floor among the apartment buildings of the second floor of the seventh floor of the second floor of the second floor of the second floor of the second floor of the second floor of the Dongdaemun-gu Seoul 65-79 located in the session of Dongdaemun-gu as a community living facility; and (b) on November 30, 2004, the Plaintiff acquired the ownership of 201 among the above apartment buildings (a floor area of 81.85 square meters; hereinafter “instant building”); and (c) at the time of the Plaintiff’s acquisition of the instant building, the instant building has already been changed to four so-called studio (hereinafter “instant

Meanwhile, Article 14(2) of the former Building Act provides that a report may be filed when changing the purpose of use of a building, and in cases prescribed by the Presidential Decree, a report may be made without filing a report in the proviso. Article 14(2) of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 19466, May 8, 2006) provides that “The total floor area of the part intended to change the purpose of use is less than 10 square meters” under subparagraph 7 of Article 14(2) of the former Enforcement Decree of the Building Act, which provides that the case where a change of use can be made without filing a report upon delegation, is subject to an application for change of the purpose of use under Article 14(4) of the same Act, not a report of change of use.

However, the amended Building Act (amended by Act No. 7696 of Nov. 8, 2005, effective May 8, 2006) was enforced when the Plaintiff did not file an application for the change of the purpose of the instant building. Article 14(2) and (3) of the amended Building Act: (a) the purpose of use of a building is to be changed to a use corresponding to the upper facility group (a case where the purpose of the building is changed to a use corresponding to the lower facility group); (b) the subject of the report (a case where the purpose of the building is changed to a use corresponding to the lower facility group); (c) the subject of the application (a case where the purpose of the building is changed to a use corresponding to the lower facility group) is divided into those subject to the application (the contents of the amended Building Act as mentioned above are maintained until the change is limited to the location of the same facility group); (c) the amended Enforcement Decree of the Building Act (amended by Presidential Decree No. 19466 of May 8, 2006).

Meanwhile, Article 4 of the Addenda to the amended Building Act provides that "where a report of change of use or an application for change of use is filed pursuant to the previous provisions at the time this Act enters into force, and it is subject to permission for change of use or report of change of use pursuant to this Act, it shall be deemed that permission for change of use or report of change of use has been made pursuant to this Act, and where an application for change of use or change of use has been filed under the former Building Act, it shall be deemed that permission for change of use or report of change of use under the amended Building Act has only been made, and no transitional provisions

On December 28, 2007 and 2008, the Defendant issued a corrective order against the Plaintiff on the ground that the instant building constitutes an illegal building in violation of the duty to report the change of use, but the Plaintiff failed to comply with each of the above corrective order. Accordingly, the Defendant imposed a non-performance penalty of KRW 3,789,600 (hereinafter “non-performance penalty for the year 2007”) on the Plaintiff on December 28, 2007 in accordance with the calculation standard for non-performance penalty (10% of the market price standard) where the Defendant failed to comply with the corrective order on the violation of the duty to report the change of use, and KRW 4,035,200 (hereinafter “non-performance penalty for the year 208”).

However, with respect to enforcement fines for the year 2007, the Seoul Special Metropolitan City Administrative Appeals Commission held that the first instance court of this case with respect to enforcement fines for the year 2008 was unlawful in the part exceeding the basis for calculating enforcement fines (3% of the standard market price) when failing to comply with a corrective order with respect to the violation of the obligation to apply for the change of entry for each use, and accordingly, the defendant issued an ex officio revocation disposition to reduce enforcement fines for the year 2007 to KRW 1,136,800 on February 10, 2009 and KRW 1,210,500 on August 6, 2009, respectively (hereinafter “each disposition of this case”).

3. Under the foregoing circumstances, the lower court determined that each of the instant dispositions was unlawful on the following grounds.

In other words, according to the former Construction Act which was applied at the time of the change of the purpose of this case, the change of purpose of this case was legally made in accordance with the former Building Act, and therefore, the change of purpose of use of this case cannot be an illegal building after the revision of the Building Act. Thus, each corrective order issued by the defendant to correct the violation of the duty to report the change of purpose under the premise that the use of the building in this case is an illegal building in violation of the duty to report the change of purpose of use after the revision of the Building Act. As such, each corrective order issued by the defendant to correct the violation of the duty to report the change of purpose of use under the premise that it is an illegal building in violation of the duty to report the change of purpose of the building in this case. Accordingly, the imposition of charges for compelling performance in 207 and 208

4. However, the above determination by the court below is not acceptable in light of the legal principles as seen earlier.

Even though the change of use in this case is subject to an application for change of entry for use without filing a report under the former Building Act, insofar as the Plaintiff did not actually file an application for change of entry for use at the time of the enforcement of the former Building Act, the building in this case cannot be deemed a legitimate building under the former Building Act, and such unlawful state due to the change of use in this case’s building is maintained until the time of restoration to the original state or completion

In addition, the legal nature of the unlawful condition should be determined by the law enforced at the time of the enforcement, barring any special circumstances. Therefore, the alteration of use of this case, which cannot be deemed unlawful under the revised construction law, is subject to the report of the alteration of use pursuant to the revised construction law, unless there is a separate provision excluding the illegality of the alteration of use, such as the alteration of the use of this case, and the use of this case is subject to the report of the alteration of use, and the building of this case becomes an unlawful building in violation of the duty to report the alteration of use. Therefore, in 207 and 2008, after the enforcement of the revised construction law, the defendant considered the building of this case as an illegal building in violation of the duty to report the alteration of use, and issued a corrective order, and imposed the penalty for compelling execution for the non-performance of this case in 207 and 208 (However, as seen above, the part revoked ex officio by the defendant among the charges for compelling execution in 207 and 2008).

Nevertheless, on the grounds indicated in its reasoning, the lower court determined that each of the dispositions of this case remaining after ex officio revocation is unlawful on the premise that both the Defendant’s respective corrective orders were unlawful and the imposition of enforcement fines for the year 2007 and the year 2008 based thereon are unlawful. In so doing, it erred by misapprehending the legal principles on the application for change of purpose of use and change of purpose of use under the Building Act, which affected the conclusion of the judgment. The

5. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)