209Nu4210 Revocation of a disposition of dismissal against removal of illegal facilities

00

Gyeong-nam

National Park Management Corporation

Seoul

Representative Board Chairperson and Board Decision

소송수행자 ◆◆◆

Changwon District Court Decision 2008Guhap2949 Decided June 25, 2009

October 9, 2009

October 30, 2009

1. Revocation of a judgment of the first instance;

2. The instant lawsuit shall be dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The defendant's disposition of administrative guidance for removal of illegal facilities against the plaintiff on October 17, 2008 shall be revoked.

1. Details of the instant disposition

The following facts are not disputed between the parties, or acknowledged by the overall purport of the pleadings in each description or image of Gap evidence 1-1, 2, 3, and 6-1, 15, 8-1, 2, and 3.

A. around December 191, 199 to 194, the Plaintiff installed steel pipe structure 681 m23m2 (hereinafter referred to as “the livestock shed of this case”) with steel network fences on the instant land, and 150.4m2 (hereinafter referred to as “the instant warehouse”) with steel pipe structure 681m23m2 on the instant land, and 1994 with steel pipe structure 1,50.4m2 (hereinafter referred to as “the instant warehouse”) with steel pipe structure 1,50m20,000 to 30 m2,000,000,0000, and the Plaintiff installed 3 m2,000 m2,000 on the instant land with the permission of 30m2 (hereinafter referred to as “the instant warehouse”) from 1,000 to 3,000 m2,000 to 1,000 m3,000.

B. On July 9, 2008, the Defendant issued an order to voluntarily remove the instant warehouse within 15 days from the date of delivery of the order to the Plaintiff on the ground that the period of permission to occupy and use the warehouse of this case expired, and that the instant stable and sealing facilities were illegal facilities constructed without obtaining permission under Article 23(1) of the Natural Parks Act, and issued a second order to perform administrative vicarious execution to the Plaintiff on August 4, 2008.

C. Despite the above mooring, the plaintiff did not voluntarily remove the facility of this case, and the defendant notified the plaintiff on October 8, 2008 of the date and time of vicarious execution to the plaintiff on October 9, 2008 by a warrant of vicarious administrative execution with a content of the date and time of vicarious execution as 9:00 on October 15, 2008. On October 15, 2008, the plaintiff started vicarious execution and removed the 542.3m of the whole warehouse of this case and part of the stable of this case. In order to secure the safe movement place of the plaintiff raised, the removal of the facility of this case was delayed due to the lack of equipment.

D. Thereafter, on October 17, 2008, the Defendant ordered the Plaintiff to voluntarily withdraw the instant livestock shed 138.7 square meters and the instant double-wing facilities, which have not yet been removed, within 15 days from the date of delivery of the order, and failed to comply with the order (hereinafter “disposition of this case”).

2. Parties’ assertion

The defendant asserts that the disposition of this case is lawful on the ground that the facility of this case was constructed without permission or the period of permission to occupy and use a park expired. Accordingly, the plaintiff's construction of the facility of this case does not require permission since the beginning of the beginning of the natural park law and does not require permission. Thus, the plaintiff does not have a duty under the public law to remove the facility of this case, and even if the facility of this case is installed, it does not infringe the public interest of preserving a natural park. On the other hand, when the facility of this case is removed by the disposition of this case, it goes against the balance of interest because it is too harsh to the plaintiff who maintains his livelihood by raising the baby, etc., and the defendant did not take any measures since the installation of the facility of this case, and the disposition of this case is unlawful on the ground of its failure.

3. Whether the lawsuit of this case is legitimate

Prior to the judgment on the merits, we examine ex officio the legitimacy of the lawsuit in this case.

In a case where the owner of a building orders the removal of illegal buildings by a certain period and notifies the owner of a building of an order to remove the building by a certain period of time, and if the building fails to comply with the second order, the second order is partially executed, and the third order to remove the building and the third order to remove the building is again made, the obligation to remove the building under the Administrative Vicarious Execution Act is deemed to have been caused by the first order to remove the building and the third order to remove the building and the third order to remove the building cannot be deemed to have been a new obligation to remove the building. However, it cannot be deemed to have been an independent administrative disposition subject to the revocation lawsuit because it merely demands the removal of the building by the previous order to remove the building or notifies the extension of the period of the vicarious execution (see Supreme Court Decisions 98Du465, Feb. 22, 200; 94Nu12531, Apr. 7, 1995; 9Nu484, Apr. 25, 1994).

On July 9, 2008, the first order issued by the defendant on July 9, 2008, and second order issued by the plaintiff on August 4, 2008, and the second order issued by the defendant on August 4, 2008, the plaintiff did not comply with it, and the remaining execution was delayed, but the plaintiff did not execute it voluntarily, and thus, again made the disposition again. As seen above, the disposition of this case was merely a demand for removal of the building by the previous order issued by the previous order or a notification to postpone the period of vicarious execution, and thus, it cannot be deemed an independent order issued by the defendant subject to the revocation lawsuit.

Therefore, the Plaintiff’s lawsuit seeking revocation of the instant disposition is unlawful. 4. Conclusion

Therefore, the lawsuit of this case is dismissed in an unlawful manner, and the judgment of the court of first instance is unfair with different conclusions, so the judgment of the court of first instance shall be revoked and the lawsuit of this case shall be dismissed as per Disposition.

Maleman (Presiding Judge)

Kim Jong-hee

Lee Jin-soo