Scope of damages caused by unlawful removal of a building

Damage in a case where an unauthorized household building is a building which is forced to be removed without compensation between the owner or the defendant, or is obviously a building in the situation of the plaintiff's voluntary removal, is the amount of the material emergency cash that the plaintiff could have recovered by voluntary removal of the building.

Articles 763 and 393 of the Civil Act

Supreme Court Decision 79Da1420 Delivered on November 13, 1979

Kim Jong- Captain

Seoul Metropolitan Government

Seoul Central District Court (77Gahap2681) in the first instance trial

(1) From March 18, 1975 to the full payment date, the part of the judgment against the defendant ordering the plaintiff to pay above 600,000 won and the amount equivalent to 5% per annum from March 18, 1975 to the full payment date, and this part of the plaintiff's claim is dismissed.

(2) The defendant's remaining appeal is dismissed.

(3) All the costs of lawsuit are ten equal parts in the first and second trials, and are assessed against the plaintiff and the remainder, respectively.

The defendant shall pay to the plaintiff the amount of KRW 7,826,50 and the amount at the rate of five percent per annum from March 18, 1975 to the date of full payment.

The judgment that the lawsuit cost shall be borne by the defendant and the declaration of provisional execution are sought.

The part against the defendant in the original judgment shall be revoked.

This part of the plaintiff's claim is dismissed.

All court costs are assessed against the plaintiff in the first and second instances.

1. Occurrence of liability for damages;

(1) On the 197.11.20th anniversary of the construction of the building site, the head of Jongno-gu Seoul Metropolitan Government 104 square meters (hereinafter referred to as "the building site") and the 17th anniversary of the construction of the building site that the Plaintiff had received from the 1st fiveth anniversary of the construction of the building site and the 1st fiveth anniversary of the construction of the building site, the head of Jongno-gu 1 Seoul Metropolitan Government 5th anniversary of the construction of the building site shall not have any dispute between the parties, and No. 46th of the building site, No. 7th of the construction of the building site, No. 7th of the building site, No. 17, No. 5 (Evidence No. 17), No. 9, No.

Therefore, according to the above facts, the building is an illegal building without a building permit. On the other hand, even if the building is an illegal building, the enforcement of compulsory removal under the Administrative Vicarious Execution Act shall not be permitted unless the owner's failure to comply with the order to remove the building and leaving it unattended significantly detrimental to the public interest. In addition, it cannot be deemed that the head of the Gu has taken such measures, and even if the plaintiff requested a provisional disposition to suspend the validity of a vicarious removal order against the building, the plaintiff filed a request with the court for the suspension of the validity of the provisional disposition against the building of this case for the suspension of its validity, but it is illegal to remove the building within the period of voluntary removal by the above vicarious execution order and the voluntary removal order (the plaintiff was within five days from March 12, 1975 after receipt of the order to remove the building) in order to eliminate its effectiveness. In addition, even if the building is to be removed, the above movement order, which is a public official in charge, was neglected, and the public official in charge of the above construction, and thus the defendant shall not be liable for damages to the plaintiff's tort.

Although the defendant asserted that he received the removal compensation from the defendant Si after the plaintiff was removed from the building, and renounced the claim for damages due to the removal of the building, the defendant's above assertion cannot be accepted because it is difficult to recognize it only by the witness's testimony, and there is no other evidence.

Meanwhile, according to the above facts, it is clear that this building is an unauthorized building, and it is a building which is forced by the owner of the building site or by the defendant's city without compensation, or which is under the circumstances that the plaintiff should voluntarily remove, and it cannot be viewed that the plaintiff's intention or negligence caused the defendant's tort by constructing or mooring the building without permission, but it cannot be viewed as the degree of exemption from the defendant's responsibility. In determining the scope of compensation for damages, this is considered.

2. Scope of damages.

In full view of the above facts, the plaintiff suffered losses from the material amount which could have been recovered by the voluntary removal of the building of this case due to the defendant's tort. The plaintiff suffered losses from the above witness's inner value, Gap evidence 14-1,2 (written estimate), 15-1 through 11,20,21 (each receipt), witness's inner value, and witness's inner value of the building of this case. In full view of the whole purport of the arguments in the testimony of this paper, the part where the household material can be recovered from the building of this case is Karop, main room, ju, poppy, roof and Chang Ho Construction, and the materials amount and human expenses for each of the above subsidiary construction from June 6, 1974 to December 12, 1974, and the amount of 1,778,500 won for this case's testimony cannot be acknowledged to the extent that the above 60% of the construction expenses were not recovered between the parties to the building and the above 15% of the new construction expenses were not recovered.

Therefore, according to the above facts of recognition, it is apparent that the amount of virtual materials which the plaintiff can recover from the building of this case voluntarily is 800,325 won (the above 1,778,500 won X material ratio 75,100 X recycling ratio 60/100) at the time of the removal of this building. However, considering the above negligence of the plaintiff, the property damage that the defendant is liable to compensate is 60,000 won.

In addition, the Plaintiff sought compensation of KRW 163,600, total amount of the glass price stated in Gap evidence 15-16,17 (each receipt), but in light of each of the statements and arguments stated in Gap evidence 14-1, 2 (Written Estimates) and the whole purport of oral argument, the Plaintiff’s above assertion is rejected.

3. Accordingly, the defendant is obligated to pay to the plaintiff the amount of 600,000 won and damages for delay at the rate of 5% per annum per civil law from March 18, 1975 to the date of the occurrence of the principal tort. Thus, the plaintiff's claim for this case is reasonable within the above scope of recognition, and the remainder is dismissed as without merit. Since the part against the defendant, which made a different conclusion in the original judgment, is unfair, the plaintiff's claim is dismissed, and this part of the judgment is dismissed, and it is so decided as per Disposition by the application of Articles 96, 89, and 92 of the Civil Procedure Act with respect to the bearing of litigation costs.

Judges Kim Sang-won (Presiding Justice) Lee Jong-young