Plaintiff

Head of the Busan Metropolitan Government Maritime Affairs Office

September 23, 2016

Busan District Court Decision 2016Guhap644 decided June 10, 2016

1. Of the judgment of the first instance court, the part against the plaintiff falling under the order to revoke below shall be revoked.

Each imposition of enforcement fines of KRW 2,063,00 on December 16, 2013 against the Plaintiff and KRW 2,187,000 on January 15, 2015 shall be revoked.

2. The plaintiff's remaining appeal is dismissed.

3. One-third of the total litigation costs shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Text 1 and the defendant's disposition of imposition of KRW 2,128,000 against the plaintiff on January 8, 2013 shall be revoked.

1. Details of the disposition;

A. The Plaintiff is the owner of the building on the ground ( Address 1 omitted) Busan Metropolitan City (hereinafter “instant building”).

B. On January 8, 2013, the Defendant imposed a charge for compelling the performance of KRW 2,128,000 on the Plaintiff on the ground that the Plaintiff had illegally extended the instant building (hereinafter “the first disposition”). On the first disposition, the Plaintiff filed an administrative appeal with the Busan Metropolitan City Administrative Appeals Commission, but was dismissed on February 9, 2013.

C. On December 16, 2013, the Defendant issued a disposition imposing KRW 2,063,00 (hereinafter “the second disposition”) upon the Plaintiff, and issued a disposition imposing KRW 2,187,000 for compelling compliance on January 15, 2015 (hereinafter “the third disposition”).

D. On July 7, 2015, the Defendant urged the Plaintiff to pay KRW 6,378,000 for enforcement fines based on the first, second, and third dispositions. On August 10, 2015, the Plaintiff filed an objection against the Defendant regarding KRW 2,128,00 for enforcement fines on the first disposition.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, Eul evidence Nos. 1 to 4 (including each number), the purport of the whole pleadings

2. The parties' assertion

The defendant asserts that the plaintiff's lawsuit of this case is unlawful by neglecting the period of filing the lawsuit.

As to this, the plaintiff did not receive the notice of each disposition of this case because he did not reside in his domicile due to his personal reason, the plaintiff asserts that the plaintiff did not comply with the period of filing the lawsuit. The plaintiff's assertion that the disposition of this case did not have effect because the plaintiff did not reach the plaintiff.

3. Determination

A. As to the first disposition of this case

Article 20(1) and (2) of the Administrative Litigation Act provides that “The revocation lawsuit shall be instituted within 90 days from the date on which the person becomes aware of the disposition, etc., and the method of claiming the administrative appeal is selected, the revocation lawsuit shall be instituted within 90 days from the date on which the written adjudication on the administrative appeal is served, and no revocation lawsuit shall be instituted after the lapse of one year from the date on which the disposition, etc. or the date on

The facts that the Plaintiff filed an administrative appeal against the first disposition and received the dismissal ruling on February 9, 2013 are as seen earlier. As such, the facts that the lawsuit in this case was brought on February 22, 2016 after one year from the date the first disposition and the first disposition were adjudicated, are apparent in the record. As such, the part of the Plaintiff’s claim for revocation of enforcement fines on January 8, 2013 among the lawsuit in this case, which was filed after the lapse of the filing period, is unlawful.

B. As to the second and third dispositions of this case

Article 14(1) of the Administrative Procedures Act provides that "Service shall be made by mail, delivery, or information and communications network, and shall be made by the address, residence, place of business, office, or e-mail address of the person to be served (hereinafter referred to as "domicile, etc.")." Article 15(1) of the same Act provides that "Service shall take effect upon arrival of the document concerned, except as otherwise expressly provided for in other Acts and subordinate statutes, etc." The Building Act does not have any special provision regarding the effective date of the disposition imposing enforcement fines. Therefore, the disposition imposing enforcement fines against the plaintiff shall take effect only when the document stating the grounds for the disposition and details of the disposition, etc. is delivered to the plaintiff. In addition, as long as the administrative disposition does not reach the plaintiff and thus becomes effective, even if the plaintiff could objectively recognize the existence of the disposition imposing enforcement fines, the defect of the service cannot be deemed as cured (see, e.g., Supreme Court Decision 87Nu986, Mar. 22, 1988).

There is no evidence to prove that the notice of imposition of charges for compelling compliance, 2, and 3, on the instant case reaches the Plaintiff. Meanwhile, the Plaintiff submitted to the instant complaint accompanied by a notice of default (Evidence A 1) on the first and second dispositions, and it does not change even if the Plaintiff could have known the existence of the second and third dispositions through the notice of default. Accordingly, the second and third dispositions are deemed null and void as they were not effective.

4. Conclusion

A. Of the Plaintiff’s lawsuit in this case, the part of the Plaintiff’s claim for revocation of the disposition imposing a non-performance penalty as of January 8, 2013 is unlawful and dismissed, and the judgment of the court of first instance is just in conclusion, and the Plaintiff’s appeal as to this part is dismissed

B. Since the part of the Plaintiff’s claim for revocation of the imposition of enforcement fines as of December 16, 2013 and January 15, 2015 in each of the instant claims is null and void, the Plaintiff’s claim seeking revocation of the imposition of enforcement fines as of January 15, 2015 is accepted on the grounds of its reasoning. The judgment of the court of first instance is unfair on the grounds of its conclusion. Accordingly, the Plaintiff’s appeal is accepted, and the relevant part of the judgment of the court of

Judges Kim Jong-cheon (Presiding Judge)