[1] Whether the second disposition of restitution seeking restitution by extending the due date after the first disposition of restitution can be deemed as an independent administrative disposition subject to appeal (negative)

[2] The case holding that the owner of a temporary building has a legal interest in seeking revocation of the disposition of restitution to the owner of the temporary building site

[3] The case holding that where a temporary building was reported as a mushroom cultivator and used otherwise as a bean crop cultivator and a house, the restoration order and removal order does not constitute an abuse of discretionary authority

[1] The second disposition of restitution seeking restitution by extending the execution date after the first disposition of restitution does not impose a new duty of restitution to the plaintiff, but merely urges the restoration by the previous disposition of restitution or notifies the postponement of the deadline for criminal complaint or administrative disposition, and thus it cannot be deemed an independent administrative disposition that becomes the object of appeal litigation. Thus, the second disposition of revocation of the second disposition of restitution is unlawful because there is no legal interest in lawsuit.

[2] The case holding that since the owner of a temporary building has a direct impact on the legal status to use the temporary building due to the disposition of restitution to the owner of the site of the temporary building, there is a legal interest to seek the cancellation of the

[3] The case holding that where a temporary building has been reported as a mushroom cultivator and used it as a house, the restoration order and removal order disposition against it do not constitute abuse of discretionary authority

[1] Articles 2 and 19 of the Administrative Litigation Act / [2] Article 12 of the Administrative Litigation Act / [3] Articles 15(2) and 69(1) of the Building Act, Article 27 of the Administrative Litigation Act

[1] Supreme Court Decision 94Nu5144 delivered on October 28, 1994 (Gong1994Ha, 3142) Supreme Court Decision 94Nu12531 delivered on April 7, 1995 (Gong1995Sang, 1875) Supreme Court Decision 98Du4665 delivered on February 22, 200 (Gong200Sang, 854)

00. White iron Co., Ltd. (Law Office of the National Forestry Corporation, Counsel for the plaintiff-appellant)

200

Changwon District Court Decision 2002Guhap2725 delivered on October 2, 2003

March 5, 2004

1. Of the lawsuit in this case, the part of the claim for revocation of the disposition of restitution as of September 17, 2002 shall be dismissed.

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be borne by the Plaintiff.

The disposition of restoration to original state as of August 23, 2002, as of September 17, 2002, against flooded by the Defendant, and the disposition of removal order as of November 12, 2002, against the Defendant’s flooded or against the Plaintiff shall be revoked, respectively.

1. Details of the disposition;

A. On September 2, 1997, the Plaintiff filed a report on the construction of a temporary building of 335.5 square meters of the total floor area of 335 square meters on the ground of 750 m2,175 m2, 200 m2, 750 m2, 750 m2, 750 m2, 1997, which is a flooded name with the head of Seocheon-si, 22, 1997, and constructed the above temporary building (hereinafter referred to as the “instant temporary building”) on a part of the said land.

B. After that, the Plaintiff reported the extension of the period of the temporary building of this case to the head of Seocheon-si Dong (on September 25, 1998, the head of Dong Dong shall have jurisdiction over the affairs of two academic consent between September 25, 1998 and July 6, 2003 as amended on September 7, 2003 pursuant to the attached Table of Article 2 of the Ordinance on the Establishment of Dong-si Administrative Operating Consent and the Establishment of Dong-gu, Incheon City Administrative Operating Consent and the Designation of Dong-gu, which was amended on September 25, 1998) in the name of flood around December 199, the Plaintiff used it as a beannish cultivation and a house, different from the purpose for which the instant temporary building was reported, and received the temporary building completion certificate from the head of Dong-dong around that time to October 15, 202.

C. However, when there is a civil complaint filed by neighboring residents that the plaintiff's water was planted due to groundwater used for the plaintiff's bean cultivation around March 2002, the Dong Dong verify the fact that it was used for beanland cultivation, etc. differently from the usage reported by the temporary building of this case, and on August 23, 2002, the head of Dong ordered the temporary building of this case to restore it to the mushroom cultivation as originally reported by September 15, 2002 under Article 69 (1) of the Building Act for violating Article 15 (2) of the Building Act, and the temporary building of this case to restore to its original original state by 0.20,000,000,000 won for the above temporary building of this case to its original state until 10,000,000 won for the above temporary building of this case to its original state to its original state to its original state to its original state to its original state to its original state to its original state to its original state to its original state to its original state.

D. At the time of each of the above dispositions, illegal building control affairs for the temporary buildings of this case were delegated to the head of the competent Eup/Myeon/Dong pursuant to Article 2 [Attachment Table 1] of the Ordinance on the Delegation of the Eup/Myeon/Dong for the Affairs of Incheon City as amended on August 16, 2001. However, as amended on August 20, 2002, it was transferred to the defendant again from December 31, 2002 pursuant to Article 2 [Attachment Table 1] of the Ordinance on the Delegation of the Eup/Myeon/Dong Affairs in force on December 31, 2002.

[Basis] Evidence Nos. 3 (Evidence No. 3-1; hereinafter the same shall apply), evidence Nos. 8-8 (Evidence No. 2-1; hereinafter the same shall apply), 9 (Evidence No. 2-2), 10, 15, Eul evidence Nos. 1-1, 2, 9-1, 9-2, and 13, and the purport of the whole pleadings

2. Whether the lawsuit seeking revocation of the second disposition of restitution is legitimate

In light of the above facts, the plaintiff's obligation to restore to original state takes place through the first disposition of this case. The second disposition of this case does not impose a new duty to restore to original state, but merely urges the plaintiff to restore to original state through the previous disposition of restitution or notifies that the deadline for criminal complaint or administrative disposition is postponed, so it cannot be viewed as an independent administrative disposition subject to appeal (see, e.g., Supreme Court Decision 98Du4665, Feb. 22, 200). Thus, the second disposition of this case is unlawful because there is no legal interest in lawsuit.

3. Whether the first disposition of restitution in this case and the removal order in this case are legitimate

A. The parties' assertion

(1) The Defendant: (a) filed a report on the construction of the instant temporary building; and (b) the owner of the instant temporary building was registered in the temporary building ledger as the owner of the instant temporary building; (c) as the owner of the instant temporary building was flooded, there is no benefit to seek the instant lawsuit; and (b) notwithstanding that the Plaintiff’s use of the instant temporary building was for the purpose of using it as the bean estate cultivation and housing from the beginning, the instant temporary building was reported as a mushroom cultivation; and (d) the instant temporary building was falsely stated in violation of Article 15(2) of the Building Act at the time of the instant report; and (e) even though the retention period of the instant temporary building was seven days prior to the expiration of the retention period, the said report was not filed, and thus, each of the above dispositions was lawful.

(2) As to this, the Plaintiff reported the use of the instant temporary building as a mushroom growing company, but it was inevitable to use the instant temporary building for the purpose of using it as 247.5 square meters and 88 square meters due to the difficulty of mushroom growing in light of the circumstance. The Plaintiff asserts that the instant temporary building was not subject to the report pursuant to the proviso of Article 14(2) of the Building Act and Article 14(3) of the Building Act, and that it is not necessary to report the alteration of use of the building as a house under the proviso of Article 14(2) of the Building Act and Article 14(2)7 of the Enforcement Decree of the Building Act, and that it is unlawful for the Plaintiff to report the alteration of use of the instant temporary building for the purpose of using it as 100 square meters for the purpose of using it as 100 square meters for the reason that the instant temporary building was installed in a quasi-agricultural and forest area, and that the Plaintiff did not report the extension of its total floor area or the instant temporary building without reporting the extension of its total area.

B. Facts of recognition

(1) The Plaintiff leased part of the land 750 square meters from the flood around July 1997 and filed a report on the construction of a temporary building with the head of two school districts in the name of flood. The Plaintiff constructed the instant temporary building and installed the machinery, heating machinery, etc. with the water owner on the 247 square meters of the 335.5 square meters of the instant temporary building, and installed a residential facility with a 88 square meters of a room and a kitchen. On December 1, 1997, the Plaintiff purchased bean fish farming facility and a sales right from the luminous divers that sold bean water from the dynae that sold bean water in the said area, and used it as a bean fish farming house.

(2) After the expiration of the retention period of the above temporary building, the Plaintiff reported to the head of Dong-dong Dong in the name of flood around December 199 that the temporary building of this case will continue to be used for the mushroom farming house originally reported, and received a certificate of completion of report extending the retention period from December 2, 199 to October 15, 200.

(3) On March 2002, the head of Dong and Dong confirmed that the temporary building of this case was used by residents as the country's civil petition, unlike the original reported usage, and that it was used as the country's water cultivation and housing. On August 23, 2002, on the ground that the retention period of the temporary building of this case expired, on November 12, 2002, the head of Dong and Dong ordered the removal order of this case to the flood and the plaintiff.

[Based on the recognition] Evidence Nos. 1 (Evidence No. 5), 2, 3 (Evidence No. 3-1, 8-8 (Evidence No. 2-1, 9 (Evidence No. 2-2, 15, 16, 1-1, 2-2, 6, 13-2, 14, 14-2, 14-2, and 14-2

C. Relevant statutes

The entries in the attached Table-related statutes shall be as follows.

(d) Markets:

(1) Determination on this safety defense

According to the above facts, it is reasonable to see that the plaintiff as the party to the disposition of removal order of this case is the party to the disposition of this case, and not the party to the first disposition of restitution, but as the actual owner of the temporary building of this case, at the time of the first disposition of restitution of this case, is using the temporary building of this case as the bean estate cultivation facilities and housing, and the above disposition is deemed to have a direct impact on the legal status to use the temporary building of this case. Thus, the defendant's defense of this case

(2) Judgment on the merits

(A) First of all, Article 15(2) of the Building Act provides that "any person who intends to build a temporary building for purposes prescribed by Presidential Decree, such as a temporary building under paragraph (1) (referring to a temporary building which shall obtain a building permit from the head of a Si/Gun/Gu in an urban planning facility or planned site for urban planning facilities; hereinafter the same shall apply) other than a temporary building under paragraph (1) shall file a report with the head of a Si/Gun/Gu five days before the commencement of the construction, setting a retention period of the building under the conditions as prescribed by the Ordinance of the Ministry of Construction and Transportation." Article 15(5) of the Enforcement Decree of the Building Act provides that "the temporary building for purposes prescribed by Presidential Decree" means one of the following subparagraphs. Article 15(2)9 of the Building Act provides that "the temporary building for agricultural or fishery purposes built in a residential area, commercial area or industrial area, which has a total floor area of at least 100 square meters, shall not be deemed a fixed type building for agricultural purposes, and Article 15(7) of the Building Act provides that the temporary building shall not be reported to the head of the extension.

(B) However, according to the above facts, although the plaintiff filed a report on the construction of a temporary building of this case in a flooded name for the purpose of mushroom cultivation, it was installed for the purpose of bean crop cultivation and housing, and thereafter, the plaintiff filed a false report on the extension of the period of temporary building existence for the purpose of using the temporary building of this case again after the expiration of the retention period of the temporary building of this case as a mushroom cultivation shed. The construction of a temporary building of this case in a quasi-agricultural area is not permitted pursuant to Article 15(2) of the Building Act and Article 15(5) of the Enforcement Decree of the Building Act. Since the plaintiff installed a bean cultivation facility and housing facility in this case from the beginning to the point of time, it cannot be deemed that it constitutes a change in the purpose of use after construction. Accordingly, the plaintiff's report is a false report contrary to Article 15(2) of the Building Act and Article 15(7) of the Enforcement Decree of the Building Act, and therefore, the plaintiff's assertion that each of the above temporary buildings of this case needs not be reported.

(C) Furthermore, since the Plaintiff reported the use of the instant temporary building to a mushroom cultivation company and used it as a house different from the reported content, even if the Plaintiff reported the extension of the retention period to the instant temporary building in the name of flood, it would be deemed unlawful and thus it could not be accepted. As long as the Plaintiff reported the use of the instant temporary building in the name of flood and received a report completion certificate through a false report, it is obvious that the instant temporary building violates Article 15 of the Building Act and Article 15 (7) of the Enforcement Decree of the Building Act, as long as the Plaintiff reported the use of the instant temporary building in the name of flood and received a report completion certificate through a false report, it is obvious that the instant temporary building violates the purpose of the temporary building in the instant case. The Plaintiff used the instant temporary building corresponding to the illegal building for a period of five years, and the neighboring residents filed a civil petition that a lack of food due to the use of groundwater due to the Plaintiff’s bee or water growing, and the Defendant rejected an order to reinstate the Defendant.

4. Conclusion

Therefore, the plaintiff's lawsuit on the part of the claim for revocation of the second disposition of restitution of this case is unlawful. Thus, the plaintiff's remaining claims are dismissed as it is without merit. It is so decided as per Disposition.

Judges Noh Man-Gyeong (Presiding Judge)