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All of the appeals by prosecutors are dismissed.
Reasons
1. In relation to Article 79(1) of the Building Act, the Supreme Court precedents of the gist of the grounds for appeal deeming that a person who holds the name of the building owner falls under the building owner who is the other party to the order to correct the violating building even if the building owner is not the actual owner. As such, imposing an obligation on the building owner to prevent the use of the building for which the approval of use is not granted, and imposing an official duty under the Administrative Law, the essence of the order
Furthermore, the legislative purpose of the Building Act is eliminated if the act of prior occupancy can not be punished for the reason that it is not the actual owner but the owner of the building.
Therefore, in this case where the prior occupancy is at issue, the court below erred by misapprehending the legal principles or misconception of facts, although the defendants holding the name of the owner should be deemed the owner.
2. The owner of the summary of the facts charged shall be prohibited from using or allowing to use the building unless the approval for use is obtained; and
Defendant
A The Defendant, as the owner of D building E-dong (hereinafter “instant building”) with a total floor area of 267.67 square meters in the wife population C, the Defendant occupied F without obtaining approval from the competent authority on December 2, 2016 and used it.
B. Defendant B Co., Ltd. (hereinafter “Defendant B Co., Ltd.”) is above Defendant B Co., Ltd.
At the time and place specified in the paragraph, A, its representative, committed the above-mentioned violation with respect to the Defendant Company’s business.
3. The lower court acquitted all of the charges of this case on the following grounds.
On September 6, 2010, the name of the owner of the instant building was changed from G Co., Ltd. (hereinafter “Nonindicted Co., Ltd.”) to the Defendant Company. However, on December 10, 2008, the Nonparty Co., Ltd. registered the preservation of ownership on the instant building.