Cases where the removal duty of an unauthorized building is recognized and the vicarious disposal is legitimate;

In a case where the Plaintiff, solely on the fact that the 3rd floor existed in king, has reconstructed the said 3rd floor without obtaining permission for reconstruction only eight years after the destruction, barring any special circumstance, barring any special circumstance, the said 3rd floor was conducted without permission, and thus, barring such a duty to remove the said 4th floor, it is legitimate to dismiss the said 4th floor on the ground that, after the completion of the building required to be reconstructed without permission, there is no risk of collapse merely after the completion of the building, and if it is left unattended on the ground of only the fact that it is better in light of the urban landscape, the smooth execution of the construction administration by nullifying the power of the authority regulating the illegal building and to prevent the avoidance of all the restrictions stipulated in the Building Act at the time of the completion of the construction permission.

Articles 2 subparag. 12 and 5 of the Building Act, Article 2(1)4 of the Enforcement Decree of the Building Act, Article 2 and Article 3 of the Administrative Vicarious Execution Act

Supreme Court Decision 80Nu252 Delivered on September 24, 1980, 83Nu20 Delivered on July 26, 1983

Plaintiff

Attorney Park Jong-soo, Counsel for the defendant-appellant in Seoul Special Metropolitan City

Seoul High Court Decision 83Gu518 delivered on December 27, 1983

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

The defendant's attorney's grounds of appeal are examined.

According to the reasoning of the judgment below, the court below: (a) extended three floors on the second floor of this case by obtaining permission for extension of 46.8 square meters on the third floor of this case, which is owned by the plaintiff (on April 1, 1970, extended by 63.16 square meters above the level permitted for extension); (b) registered the extended part on the house ledger as 46.8 square meters, and completed registration of alteration on July 25, 1972; (c) reported partial destruction of the third floor building on April 18, 1975 to the defendant on April 3, 196; (d) recognized that the third floor of this case was destroyed by the destruction of the said third floor and the removal of the said third floor due to the destruction of the building ledger on April 6, 1976, the defendant cannot be deemed to have been destroyed by the removal of the remaining part on the third floor of this case, including the remaining part on the third floor, and (e) determined that the remaining part on the third floor had been destroyed by fire, etc.

However, even according to the facts of the court below, since only 2 pages 1 and 2 of the above 3th floor were destroyed by fire, and both the walls and roof of the 2nd floor were destroyed, it shall be deemed that the above 3th floor area was completely destroyed. Even if the defendant knew of these legal principles and cannot be deemed to have been destroyed by some walls of the 3rd floor, or even if he imposed and collected property tax and other public charges on the whole 3rd floor building including the destroyed part after fire, it shall not be deemed that the above 3rd floor area was not destroyed and still exist (see, e.g., Supreme Court Decision 8,90Du12, supra). Construction of the above 3rd floor area constitutes a removal of the above 2nd floor area without permission for construction permit under Article 2 subparag. 4 of the Building Act, and it constitutes a removal of the above 3rd floor area without permission for construction permit under Article 5 of the Building Act. It is more likely that the above 4th floor area without permission for construction permit for the above 9th floor area.

Therefore, the judgment of the court below is erroneous in the misapprehension of legal principles as seen above, which affected the conclusion of the judgment, and there is a ground for appeal.

Therefore, the judgment of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Jeong Jong-tae (Presiding Justice)