[1] The meaning and requirements for changing the form and quality of land

[2] Whether the act of establishing a panel or an office with steel in a dry field, which is a material for construction, constitutes a change in the form and quality of land (negative)

[3] In a case where a person subject to a disposition or an order to take measures under Article 78(1) of the Urban Planning Act violates it, whether such disposition or order to take measures is lawful in order to be punished under Article 92 of the Urban Planning Act (affirmative)

[1] The alteration of the form and quality of land means the act of changing the form of land by cutting, filling-up, or cutting the ground, filling-up, etc. and the reclamation of public waters. It requires that the form and form of land be de facto changed to the external form and that the alteration is difficult to restore

[2] There is no specific content that the defendant changed the shape of the land externally, so it cannot be recognized that the alteration of the form of land is not possible, and the act of establishing a panel or steel office, which is a material for construction in the dry field of this case, cannot be viewed as a form of changing the form and quality of land.

[3] In case where a person subject to a disposition or an order to take measures under Article 78 subparagraph 1 of the Urban Planning Act violates it, such disposition or order to take measures must be lawful, and even if the disposition is not void automatically, it cannot be established as a violation of Article 92 of the same Act, which is recognized as an illegal disposition.

[1] Article 4 (1) 1, Article 21 (2) and (3) of the Urban Planning Act / [2] Article 4 (1) 1, Article 21 (2) and (3) of the Urban Planning Act / [3] Article 78 subparagraph 1, Article 92 of the Urban Planning Act

[1] [2] Supreme Court Decision 93Do403 delivered on August 27, 1993 (Gong1993Ha, 2685) / [1] Supreme Court Decision 91Do2234 delivered on November 26, 1991 (Gong1992, 367), Supreme Court Decision 92Do1477 delivered on November 27, 1992 (Gong193Sang, 312), Supreme Court Decision 94Do3209 delivered on March 10, 195 (Gong195Sang, 164) / [3] Supreme Court Decision 90Do1709 delivered on August 18, 192 (Gong1992, 2790), Supreme Court Decision 93Do1939 delivered on December 13, 1995 (Gong1993, 193).

Defendant

Defendant

Seoul District Court Decision 95No4963 delivered on May 3, 1996

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

The grounds of appeal are examined.

1. Summary of the judgment below

According to the reasoning of the judgment below, the court below found the defendant's act constitutes a change in the form and quality of land prohibited under Articles 4 (1) 1, 21 (2) and (3) of the Urban Planning Act, and the defendant's act constitutes a change in the form and quality of land prohibited under Article 4 (1) 1, 21 (2) and (3) of the Urban Planning Act, even though the defendant was ordered to restore the land quality to its original state by December 10, 1994, the defendant failed to comply with the above order, which constitutes a violation of Article 92 subparagraph 4 and Article 78 subparagraph 1 of the Urban Planning Act, which constitutes a violation of Article 92 subparagraph 4 of the Urban Planning Act, and Article 78 subparagraph 1 of the same Act.

2. Determination

A. However, the alteration of the form and quality of land means the act of changing the form of land by cutting, filling, or cutting, filling, etc. and reclamation of public waters. The form and quality of land is required to be de facto changed in the shape and form of land (see Supreme Court Decision 92Do1477, Nov. 27, 1992) and to be in a situation where it is difficult to restore the original state due to the alteration (see Supreme Court Decision 91Do2234, Nov. 26, 1991). Even according to the facts charged itself, there is no specific content that the Defendant changed the form and quality of the land in light of the legal principles of the alteration of the form and quality of the land in light of the above facts charged, it cannot be deemed that the Defendant’s act of changing the form and quality of land was not recognized, and it cannot be deemed that the act of establishing a panel or an office composed of steel materials constructed in the dry field of this case was changed in the form and quality of Ga land (see Supreme Court Decision 93Do40303, Aug. 27, 1993).

However, according to the records, the corrective measures taken against the defendant by the head of Dobong-gu consider that "the defendant violated Article 21 of the Urban Planning Act by installing and using a panel value of about 500 square meters and a steel stuff office office on the answer of this case." Thus, the defendant's act is prohibited by Article 4 (1) 2 of the Urban Planning Act and Article 5 (2) and (3) of the Enforcement Decree of the same Act as "the act of piling up in green area with a weight of at least 50 m or volume of 50 m or volume of 50 m or larger for not less than one month," and thus, the corrective order was issued by the defendant as to whether the above corrective measures were violated. However, if the above act is deemed to have been performed, it is entirely clear that the defendant's act constitutes "the act of piling up a specific container with a height of at least 500 m2,000 square meters installed on the answer of this case, and the defendant's act of piling up a 40 m or more,5 m."

B. In addition, the lower court acknowledged that the Defendant failed to comply with the order to reinstate the dry field from the head of Dobong-gu without justifiable grounds, and determined that the Defendant failed to comply with the corrective measures of the relevant administrative agency regarding the change in the quality of land.

However, in order for a person subject to a disposition or an order to take measures under Article 78 subparagraph 1 of the Urban Planning Act to be punished under Article 92 of the same Act due to such violation, the disposition or order to take measures must be lawful. Even if the disposition is not null and void, the violation of Article 92 of the same Act cannot be established as long as it is recognized as an illegal disposition (see Supreme Court Decision 90Do1709, Aug. 18, 1992). As seen earlier, unless a defendant's change in the quality of land is recognized, the corrective measures on the premise that the change in the quality of the land is an act of changing the form and quality of the land is an unlawful disposition, and thus, the corrective measures cannot be punished under Article 92 of the same Act, just because

C. Therefore, the judgment of the court of first instance which found the defendant guilty is erroneous in the misapprehension of legal principles as to the change of land form and quality, or failing to exhaust all deliberations, which affected the conclusion of the judgment. The ground of appeal containing the purport of pointing this out

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below shall be reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating judges.

Justices Lee Yong-hun (Presiding Justice)