The burden of proving the fulfillment of the requirements for vicarious administrative execution

In the event that an administrative vicarious execution is conducted to remove a building which has been reconstructed without permission, the assertion that the requirements for the vicarious execution are satisfied and the burden of proof is against the administrative agency which has issued the disposition of guidance

Article 2 of the Administrative Vicarious Execution Act

[Judgment of the court below]

[Defendant-Appellee] Defendant 1 and 3 others

Gwangju High Court Decision 79Gu57 delivered on May 14, 1980

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

In light of the provisions of Articles 3 and 2 of the Administrative Vicarious Execution Act, even if the plaintiff had a duty to dismantle the building of this case without permission in violation of the Building Act, if it is difficult to secure the performance by other methods and it is deemed that the failure to perform is very detrimental to the public interest, it shall be permitted to take a preventive measure to execute the vicarious execution of the duty to remove the building, and the allegations and burden of proof regarding the fulfillment of these requirements shall be borne by the administrative agency which has issued the disposition. In light of the records in detail, there is no evidence to find that the failure to perform the duty to remove the building of this case is extremely detrimental to the public interest as at the time of the disposition, and there is no evidence to find that the court below's decision with the same purport is just and there is no illegality in the misapprehension of legal principles as argued

Therefore, the appeal of this case is without merit, 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 Ahn Byung-soo (Presiding Justice)