In case where the urban landscape is good monthly due to an illegal building, whether the order of removal and the disposition of removal by vicarious execution is illegal (negative)

If an illegal building in violation of the Building Act was simply good in light of the urban landscape after its completion and neglected as it is in spite of the order of prior removal by the competent authority, it would endanger the smooth execution of the construction administration by nullifying the authority governing the illegal building's authority. In addition, at the time of the permission and completion inspection under the Act, it would be likely to undermine the greater public interest to prevent in advance the harmony with neighboring buildings such as fire-fighting systems, parking facilities, traffic flow facilitation, building-to-land ratio for the protection of a proper living environment, light rate, and other restrictions stipulated under the Building Act. Therefore, the order of removal and the disposition of vicarious removal for the building in violation of the Building Act is legitimate.

Article 42 of the Building Act, Article 2 of the Administrative Vicarious Execution Act

Supreme Court Decision 83Nu505 Decided February 28, 1984, 84Nu92 Decided September 11, 1984, Supreme Court Decision 84Nu699 Decided July 23, 1985

[Judgment of the court below]

Chuncheon City Mayor (Attorney Kim Young-young, Counsel for defendant-appellant)

Seoul High Court Decision 86Gu167 delivered on June 17, 1987

The appeal is dismissed.

The costs of appeal shall be borne by the plaintiff.

As to the Grounds of Appeal:

(1) With respect to a building under the Building Act, if the owner or other right holder has constructed or repaired a building in violation of an order or disposition issued under the same Act, the head of the Si/Gun shall not only suspend, remove, rebuild, extend, repair, prohibit the use of, or restrict the use of the building, but also take necessary measures against the contractor, field manager, manager, or possessor of the construction work. Thus, the person who is ordered by the administrative agency pursuant to the same provision shall be the person subject to the administrative disposition concerned. Therefore, in this case, the court below ordered the non-party who is the owner of the building in question and directly constructed at the site to voluntarily remove the building without permission, but the court below failed to comply with the order of the non-party who is the owner of the building in question, who is the owner of the building in question, to voluntarily remove the building without permission within the prescribed period, and it is proper and proper to confirm the fact that the building was issued with the notice that it can be carried out by administrative vicarious execution and determine it as legitimate. It does not have any error as a theory of law.

(2) In light of the relevant provisions, it is clear that the provision of Paragraph (3) of the Addenda to the Building Act, enacted by Act No. 984 of Jan. 20, 1962, if a building was constructed before the enforcement of the Act, such as a theory, can not be the ground for granting permission for large-scale repair or permission for remodeling, notwithstanding the provision on the restriction on industrial areas under the same Act. Therefore, it cannot be accepted all the arguments that are premised on the relevant provision as the ground for the theory. In addition, if the court below's evidence and fact-finding on the violation of the plaintiff's Building Act were found to be erroneous due to misconception of facts against the rules of evidence, and if the illegal building violated the Building Act was not neglected without the prior removal order of the competent agency after its completion, it would endanger the execution of the building administration by nullifying the power of the authority regulating the illegal building, and there is no concern that the prior removal order of fire-fighting facilities, parking facilities, traffic flow, height of adjacent buildings, and the removal of building-to-land ratio and prevention of living environment.

After all, the appeal is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating judges.

Justices Kim Yong-ju (Presiding Justice)