The degree of clarity that an order for the suspension or change of construction works under Article 77 (1) and Article 85 (12) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents shall be prepared.

Article 77(1) and Article 85 subparag. 12 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents

Defendant 1 and one other

Prosecutor

Law Firm Eul District Court Decision 201Na1448 delivered on August 2, 201

Seoul Western District Court Decision 2006No1193 Decided January 30, 2007

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

Article 77 (1) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents provides that "where the implementation of a rearrangement project is deemed to have violated this Act, an order or a disposition under this Act, a project implementation plan, or a management and disposal plan, the Minister of Construction and Transportation may, to the extent necessary for the proper implementation of the rearrangement project, cancel, alter, or suspend the relevant disposition, suspend or change the relevant construction works, recommend the project implementer or a rearrangement project management contractor to take other necessary measures, and Article 85 (1) 12 of the same Act provides that "the Minister of Construction and Transportation may, to the extent necessary for the proper implementation of the rearrangement project, impose imprisonment for not more than two years on the project implementer or the rearrangement project management contractor, who fails to comply with the order to suspend or change the relevant construction works, or may be punished by a fine not exceeding twenty million won on the project implementer or the rearrangement project management contractor."

According to this, the issue of whether to impose the duty of commission and omission and the contents and scope thereof are entirely determined by the administrative disposition, and in light of the perspective of the principle of no punishment without the law or the principle of clarity of penal laws derived therefrom, it is necessary to clarify the scope, type, contents, etc. of the prohibited construction work without any doubt, and it should be interpreted strictly.

However, according to the records, it is sufficient to interpret the order to suspend the removal of this case as meaning all construction works related to the removal on the surface of the building. Accordingly, it is reasonable to interpret the order to prohibit not only the removal of complete buildings, but also the removal of buildings which had already been removed at the time of the order to suspend the removal of this case and the removal of the remaining parts thereof. However, the court below reversed the judgment of the court of first instance which found the defendants guilty of the facts charged of this case on the ground that there is a lack of evidence to prove that the defendants had been performing construction works in violation of the order to suspend the removal of this case. Thus, the court below erred in the misapprehension of the order to suspend the removal of this case, and such illegality affected the judgment.

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)