The case holding that the removal, replacement execution, and succession disposition is legitimate even if the building area extended without permission does not harm the aesthetic view of the building and heavy expenses are required for its removal.

In cases where the Building Act requires the head of Si/Gun to obtain permission from the head of Si/Gun in advance for the purpose of preserving the urban landscape and living environment, taking into account the height of the building, harmony with neighboring buildings, building-to-land ratio, availability rate, etc., and after confirming whether the building was constructed which does not violate the restrictions stipulated under the Building Act, such as fire-fighting facilities, parking facilities, and other buildings which are necessary for the formation of the building, and whether the building was constructed in conformity with the permitted conditions, and if the building was constructed in compliance with the order to remove it, and if the building was constructed in compliance with the said conditions, the order to remove it was issued to the head of Si/Gun and to remove it. Thus, barring any special circumstances, the order to remove it and the disposal of it due to the failure of the head of Si/Gun shall be deemed justifiable. Thus, the judgment of the court below is justifiable in view of the fact that there is no risk of undermining the existing building in light of the use, location, size and construction materials of the extended building portion

Article 2 of the Administrative Vicarious Execution Act, Article 5 of the Building Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Lee Dong-young et al., Counsel for plaintiff-appellant)

Attorney Lee Jae-ho et al., Counsel for defendant-appellant

The head of Dongdaemun-gu

Seoul High Court Decision 89Gu5487 delivered on March 2, 1990

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

원심판결 이유에 의하면, 원심은 그 거시증거에 의하여 원고가 실질적 소유자로서(소외 지상룡과 원고의 아들인 소외 지홍근 이름으로 건축허가를 받았다가 1988.3.2. 위 지상룡의 지분을 이전등기 받았다.) 1987.10.23. 서울 동대문구 청량리동 52의19 지상 철근콘크리트조 및 벽돌조 평슬래브지붕 4층 근린생활시설 및 주택을 신축한 뒤 1988.3.경 당국의 허가없이 위 건물 4층 옥상위에 블록 및 알루미뉼 샤시조 슬레이트지붕 주택 29.58평방미터를 증축한 사실을 인정한 다음 위 주택을 그대로 방치한다면 불법건축물을 단속하는 당국의 기능을 무력하게 하여 건축행정의 원활한 수행이 위태롭게 되고 또한 건축법 소정의 제반 제한규정을 회피하는 것을 미리 방지한다는 더 큰 공익을 해칠 우려가 있다는 이유로 피고의 이 사건 철거대집행계고처분은 적법하다고 판단하고 있다.

A building constructed without permission may be ordered to be demolished by the head of the Si/Gun (the head of the Gu in Seoul Special Metropolitan City) under the Building Act, and if an illegal architect fails to perform it, vicarious execution may be conducted under the Administrative Vicarious Execution Act, and when the Building Act is constructed, the head of the Si/Gun shall, when granting permission for construction, require the head of the Si/Gun/Gu to permit the construction of a building necessary for preserving the urban landscape and living environment, considering the height, harmony with neighboring buildings, building-to-land ratio, usage rate, etc., of the building, and to verify whether the building was constructed in compliance with the restrictions under the Building Act, and to verify whether the building was constructed in compliance with the permitted conditions, and to inspect the completion of the construction, thereby preventing the occurrence of the illegal building and to remove the building if the building was constructed in compliance with the permitted conditions. Thus, barring any special circumstances, the order to remove the building without permission and disposition that the head of the Si/Gun and the head of the Gun were justified (see Supreme Court Decision 90Nu462, May 111, 190).

In light of the records, even if we consider that there is no risk of undermining the aesthetic view of the use, location, size, and construction materials of the extended building cited by the theory of lawsuit, and that considerable expenses are required for removal, the maintenance of the building portion illegally extended is more likely to be infringed on the public interest. Thus, the above fact-finding and determination by the court below is just and there is no violation of the rules of evidence, mistake of facts, or misapprehension of legal principles as to the facts alleged in the arguments, and there is no violation of the rules of evidence or misapprehension of legal principles as to the party members cited in the arguments. Thus, all of the arguments are groundless.

Therefore, the appeal is dismissed, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Yong-sung (Presiding Justice)