The case holding that even if the object of voluntary removal and vicarious execution was stated only in the "violation of a building being extended on a specific site", it cannot be deemed that the object is not specified in light of the fact that a corrective order indicating the specific violation was issued several times prior to the disposition of the order.

If a person who has obtained permission for extension of the existing building with regard to the existing building violates the above construction by the head of the competent Gu, "the second floor area in the above construction, the additional installation of the building in the underground from underground to the fourth floor, the installation of the outside warehouse in the first floor, and the installation of the outside warehouse in the fifth floor, and the part of the building in the fifth floor in the fifth floor, and the part of the building in the fifth floor, the columns installation and the part in the sixth floor are in violation of the above extension permission, on several occasions since the corrective order marked as above was issued, and if the above project supervisor received a corrective order with the same contents as above, it cannot be said that the object of voluntary removal and vicarious execution is not specified even if the vicarious execution order written only "the violation of the building in the ground (number omitted)".

Article 3 of the Administrative Vicarious Execution Act

Supreme Court Decision 85Nu314 Decided December 24, 1985 (Law No. 333No536Gong70 Decided 345)

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law No. 1987, 672)

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

Plaintiff

The head of Mapo-gu Seoul Metropolitan Government

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

On July 11, 1990, the decision that the defendant revoked the disposition of removal of buildings against the plaintiff on July 11, 1990.

Comprehensively taking account of the whole purport of the argument in the evidence Nos. 1-2, 1-2, 1 through 6, and 12, it can be acknowledged that the Plaintiff, on April 22, 1989, ordered the Plaintiff to voluntarily remove the matters in violation of the above extension permission within seven days from the delivery date of the complaint against the Plaintiff on July 11, 1990, by obtaining permission from the Defendant for extension of the building portion on the existing building stated in the above list as to the existing building on its own ownership, and by obtaining permission from the Defendant for extension of the building portion on the above list, and by extension of the permitted part on the above list (hereinafter referred to as the "the part on violation of this case"). In addition, it can be recognized that the Plaintiff, on April 22, 1989, voluntarily issued an order to remove the building in violation of the above extension permission within seven days from the delivery date of the complaint to the Plaintiff.

First, the plaintiff did not have any violation of the above extension works, second, the order of the court in this case only stated that the violation of the building that is being extended on the ground of Mapo-gu Seoul Metropolitan Government Do (Seung omitted) is voluntary removal, and does not clearly state what the contents of the violation are, and the object of voluntary removal and vicarious execution is not clearly specified. Third, since the construction of the above building has been completed and its use is currently in use, it is not likely to seriously undermine public interest even if it is not removed, and fourth, the order of the court in this case goes beyond or abused the discretionary power's discretion to execute the removal of the building. Fourth, the order of the court in this case is alleged to be unlawful. Accordingly, the defendant extended more than the area permitted for the extension works, and the defendant issued the order of voluntary removal by specifying the part of the violation already in this case before the order of voluntary removal, and the removal without the above part is not an abuse of discretionary power or abuse of discretionary power.

First, as to the plaintiff's first argument, the fact that the plaintiff extended the part of the violation of this case by either expanding more than the permitted area or expanding the non-permitted part than the permitted area while obtaining permission for extension of the extension work is recognized as above. Therefore, the plaintiff's first argument is groundless.

Then, considering the remaining arguments of the plaintiff, Gap evidence 1-2, Eul evidence 1-1-2, and Eul evidence 1 through 15, the plaintiff extended the above extension permission on April 22, 1989 more than the permitted area of the underground floors, the first floor and the fourth floor, and the installation of the five stories and rooftop. The plaintiff did not visit the site around February 12, 1990 and investigated the facts of the violation of this case's order for the extension of the 19th floor to the 19th floor without permission (the 5th floor was under construction without permission), the plaintiff continued to remove the above violation of this case's order for the extension of the 19th floor to the 19th floor without permission, and the defendant continued to remove the above violation of this case's order for the extension of the 19th floor to the 19th floor and the 2nd floor (the 5th floor was under construction without permission for the plaintiff's order for the extension of the 190th floor).

In light of the above facts, the plaintiff, who performs the construction work on the permitted architectural drawing, knew that he had been aware of the extension of the part of the violation of this case without permission by the project supervisor and the defendant several times during the construction work. Thus, the object of voluntary removal and vicarious execution of the order of correction of the above violation was stated only as "the violation of the building being extended on the ground of Mapo-gu Seoul Metropolitan Government shotdong", and it cannot be deemed that the object of voluntary removal and vicarious execution is not specified. And if the part of the violation of this case is neglected, the power of the authorities regulating it would distort and endanger the smooth execution of the construction administration. When the permission and completion inspection is conducted under the Act, it shall be deemed that the prevention of avoidance of other restrictive provisions under the Building Act, such as fire-fighting facilities, parking facilities, facilitation of traffic flow, harmony with neighboring buildings, etc., and it shall be deemed that the defendant's disposition of this case constitutes an abuse of discretionary power or an abuse of discretionary power in the disposition of this case.

Thus, the defendant's appeal of this case is lawful. Thus, the plaintiff's claim of this case seeking revocation on the premise that the above disposition is unlawful is dismissed without merit, and the costs of lawsuit are assessed against the losing plaintiff.

Judges Kim Jong-jin (Presiding Judge)