[1] Even though a person holding the name of the building owner for a building violating the Building Act is not the actual building owner, whether the building owner constitutes the other party to the corrective order under Article 79(1) of the Building Act (affirmative in principle)

[2] In a case where Party A, who obtained a building permit for a building, transferred the building and site under construction to Party B, but used the building without obtaining approval for use without changing the name of Party B, and the administrative agency issued a corrective order to Party A, the title holder of registration of ownership preservation on the building, and imposed a non-performance penalty, the case holding that the court below erred in the misapprehension of legal principles as to the owner or owner, etc. who is the other party to

[1] In light of the relevant provisions of the Building Act, it is difficult to view that the competent administrative agency has the right to substantially examine whether the building owner is the actual owner, and even if it is nominal owner, if it is not the direct cause agent for the building in violation, it should be held liable as the nominal owner even if it is not the direct cause agent for the building in violation. If it is not deemed as such, the building owner may be abused as a means of avoiding liability by asserting that he is merely the nominal owner, and it may be abused as a means of avoiding liability by asserting that the building owner is merely the nominal owner, and the relation of the administrative law may be unclear and may act as an element that may undermine legal stability, barring special circumstances such as where the name holder in violation is stolen, it shall be deemed as the building owner under Article 79(1) of the

[2] In a case where Gap, who obtained a building permit for a building, transferred the building and site under construction to Eul, but used the building without obtaining approval for use, the administrative agency issued a corrective order to Gap who is the title holder of registration of ownership transfer concerning the building that is the building owner and the title holder of registration of ownership transfer, and imposed a non-performance penalty, the case holding that the court below erred in the misapprehension of legal principles as to the owner or owner, who is the other party to the corrective order under Article 79 (1) of the Building Act, although the above disposition is lawful, inasmuch as there is no evidence to acknowledge special circumstances such as theft of the name of the owner, etc., and as long as Gap who is the owner in the register of real estate, becomes the owner or owner of the building, the other party to

[1] Articles 79(1) and 80(1) of the Building Act / [2] Articles 79(1) and 80(1) of the Building Act

[1] Supreme Court Decision 2007Du5639 decided Jul. 24, 2008 (Gong2008Ha, 1245)

Plaintiff

The head of Gangseo-gu Seoul Metropolitan Government (Law Firm Han, Attorneys Kim Jong-pon et al., Counsel for the plaintiff-appellant

Seoul High Court Decision 2009Nu25264 decided June 4, 2010

The judgment below is reversed, and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. According to Article 79(1) and the main sentence of Article 80(1) of the Building Act, if a site or a building violates either a building Act or an order or disposition thereunder, the permitting authority may revoke permission or approval under the Building Act, order the owner, contractor, field manager, owner, manager, or occupant (hereinafter “owner, etc.”) of the building to suspend construction, or to remove, rebuild, extend, repair, repair, change the purpose of use, prohibit, or restrict the use of the building, or take other necessary measures within a reasonable time limit; and the permitting authority shall impose a non-performance penalty on the owner, etc. who fails to comply with the order within the corrective period after receiving the above corrective order within the reasonable time limit necessary for the performance thereof.

In light of the relevant provisions of the Building Act, it is difficult to see that the competent administrative agency has the right to substantially examine whether the building owner is the actual owner at the time of a building permit or building report, and even if it is nominal owner, if it is not the direct causing agent for the building in violation, it is reasonable to assume liability as the nominal owner even if it is not the direct causing agent for the building in violation. If it is not deemed as such, the building owner may be abused as a means to avoid liability by asserting that he is only the nominal owner, and the building owner may be abused as a means to avoid liability by asserting that it is not the nominal owner, and the relationship of the administrative law is unclear and may act as an element to undermine legal stability, unless there are special circumstances such as the use of the name by the owner, etc. (see Supreme Court Decision 2007Du5639, Jul. 24, 2008).

2. According to the reasoning of the first instance judgment as cited by the lower court and the record, the lower court acknowledged the facts as indicated in its reasoning after comprehensively taking account of the adopted evidence, and determined that the corrective order issued by the Defendant against the Plaintiff and the disposition of this case premised on it is unlawful on the following grounds: (a) at the time of issuing the corrective order, the Plaintiff cannot be deemed the actual owner or owner of the instant building by transferring the instant building to Nonparty 1; and (b) accordingly, the Plaintiff was not in a position to respond to the Defendant

3. However, such determination by the lower court is difficult to accept in light of the above legal principles and records. According to the reasoning of the first instance judgment as cited by the lower court and the records, the Plaintiff, along with Nonparty 2, was a co-owner who obtained a building permit for the instant building on June 23, 200, and the registration of preservation of ownership was completed in the name of the Plaintiff and Nonparty 2 on December 19, 2005 following the obligees’ request for provisional attachment, and the registration of preservation of ownership was completed in the name of the Plaintiff and Nonparty 2 on November 6, 2007 due to the cancellation of the registration of preservation of ownership by Nonparty 2 on November 6, 2007.

In light of such facts in light of the above legal principles, insofar as there is no evidence to acknowledge the special circumstances such as the theft of the owner’s name, it is reasonable to view that the Plaintiff, the owner of the building of this case, and the owner in the register of real estate register, can become the owner or owner, the other party to the corrective order under Article 79(1) of the Building Act.

Nevertheless, under the premise that the other party to the corrective order under Article 79(1) of the Building Act should be the actual owner or owner, etc., the court below erred by misapprehending the legal principles as to the owner or owner, etc. who becomes the other party to the corrective order for the violating building, as well as the disposition of this case, on the sole ground as stated in its reasoning. Therefore, the ground of appeal assigning this error is with merit.

4. Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young (Presiding Justice)