[1] In a case where a project owner, etc. who intends to extend the retention period of a temporary building files an extension report with an administrative agency upon meeting all the documents and requirements stipulated in the statutes, whether the administrative agency may refuse to accept the extension report on the grounds that the documents, such as “written consent to use the site,” which are not required by the statutes, are

[2] The legal nature of enforcement fines under the Building Act (i.e., indirect enforcement fines) and, where an obligor subject to a corrective order has fulfilled an obligation even after the period stipulated in the corrective order, before the enforcement fines are imposed, whether enforcement fines may be imposed (negative)

[1] In principle, a temporary building is not a “building” under the Building Act, and it can be constructed without a building permit or building report, but it is subject to reporting because it is necessary to control risks corresponding to a building. In light of the purport of the reporting system, when a project owner, etc. who intends to extend the retention period of a temporary building files an extension report with an administrative agency by meeting all the documents and requirements stipulated in the statutes, the administrative agency shall, in principle, accept it and deliver a certificate of completion of report, and shall not refuse to accept it for reasons other than those stipulated in the statutes. Therefore, the administrative agency shall not refuse to accept the report on the extension of retention period on the ground that there is no consent from the owner of the building site.

[2] The enforcement fine under the Building Act is not a sanction against the past violation, which is not a non-performance of the corrective order, but an administrative indirect enforcement means indirectly compelling the fulfillment of the obligation by issuing an order to perform the obligation and notifying that the enforcement fine is imposed if the obligation is not fulfilled within the implementation period. In light of the intrinsic nature of the enforcement fine, where the obligor subject to the corrective order has performed the obligation before the enforcement fine is imposed, the enforcement fine may not be imposed even after the lapse of the period stipulated in the corrective order.

Furthermore, if a person liable to whom a corrective order was issued files an application or a report with the competent administrative agency in a justifiable manner to perform an obligation consistent with the purport of the corrective order, but the administrative agency unlawfully rejected or rejected it and thus the disposition is revoked, barring any special circumstance, deeming that it is impossible to impose enforcement fines on the ground of nonperformance of the corrective order accords with the purport of the enforcement fine system

[1] Article 20(2) of the former Building Act (Amended by Act No. 12246, Jan. 14, 2014); Articles 15(5), (7), (8), and (9) of the former Enforcement Decree of the Building Act (Amended by Presidential Decree No. 24621, Jun. 17, 2013); Articles 13(1), (5), and (6) of the former Enforcement Rule of the Building Act (Amended by Act No. 40, Nov. 28, 2013); / [2] Articles 79(1) and 80(1) of the former Building Act (Amended by Act No. 12246, Jan. 14, 2014)

[2] Supreme Court Decision 2013Du15750 Decided December 11, 2014 (Gong2015Sang, 137)

Plaintiff 1 and one other (Law Firm Squa, Attorneys Song Hen-sop et al., Counsel for the plaintiff-appellant)

The head of Yongsan-gu Seoul Metropolitan Government (Law Firm Number, Attorneys Kim Byung-chul et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2014Nu49745 decided December 2, 2014

All appeals are dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the ground of appeal regarding the instant return disposition

A. Whether the failure to submit “written consent to site use” constitutes a legitimate ground for rejection (ground of appeal No. 1)

(1) Article 20(2) of the former Building Act (amended by Act No. 12246, Jan. 14, 2014; hereinafter “Building Act”) provides that a temporary building for the purpose of use prescribed by Presidential Decree shall be reported to the mayor, etc., and each subparagraph of Article 15(5) of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 24621, Jun. 17, 2013; hereinafter “Enforcement Decree”) which was enacted upon delegation, lists a temporary building subject to reporting.

Meanwhile, pursuant to Article 8(8) and (9) of the Enforcement Decree and Article 13(1) of the former Enforcement Rule of the Building Act (amended by Ordinance of the Ministry of Land, Infrastructure and Transport No. 40, Nov. 28, 2013; hereinafter “Enforcement Rule”), a person who intends to build a temporary building subject to reporting shall submit a report on the construction to the Mayor, etc. along with “statement on the layout plan, floor plan, and written consent to the use of a site” attached thereto, and the Mayor, etc. shall verify the details thereof and issue a report on the construction to the reporter. On the other hand, Article 15(7) of the Enforcement Decree and Article 13(5) and (6) of the Enforcement Rule of the Building Act provide that a person who intends to extend the retention period of a temporary building whose retention period has expired shall submit a report on the extension of the retention period to the Mayor, etc., and the Mayor, etc. shall issue a report completion certificate after confirming the details thereof.

(2) Inasmuch as a temporary building is not a “building” under the Building Act, it can be constructed without a building permit or building report, however, it is subject to reporting because it is necessary to control any danger corresponding to a building. In light of the purport of the reporting system, when a project owner, etc. who intends to extend the retention period of a temporary building files an extension report with an administrative agency by meeting all the documents and requirements stipulated in the statutes, the administrative agency shall, in principle, accept it and deliver a certificate of completion of report, and shall not refuse to accept it for reasons other than those stipulated in the statutes. Therefore, an administrative agency shall not refuse to accept the report on the extension of retention period on the ground that the document, such as a “written consent to site use,” which

(3) According to the reasoning of the lower judgment and the record, the Plaintiffs’ report on the extension of retention period (hereinafter “instant extension report”) with respect to the instant temporary building for which the construction report was accepted as “temporary building of a scale necessary for construction work” under Article 15(5)3 of the Enforcement Decree of the Act was defective, and the Defendant, at the time of the said extension report, issued a return disposition on the instant extension report on the ground that the Plaintiffs did not submit a “written consent to site use” by some co-owners of the co-ownership right to the relevant site (hereinafter “instant return disposition”).

Examining these circumstances in light of the legal principles as seen earlier, the instant disposition rejecting a report of extension solely on the ground that the “written consent to use site” that does not meet the statutory requirements for the report of extension of the retention period of a temporary building was unlawful.

(4) Of the reasoning of the judgment below, the part that deemed the acceptance of the instant extension report as discretionary act is inappropriate, but the court below was just in holding that the instant extension report cannot be rejected solely on the ground that the “written consent to site use” was not submitted. In so doing, the court below did not err by misapprehending the legal principles on the requirements to accept the extension report of the retention period of a temporary building, contrary to what is alleged in the ground

B. Whether the instant disposition is legitimate (ground of appeal No. 2) since a temporary building was no longer used as construction work at the time of the instant extension report (ground of appeal No. 2

(1) An appeal seeking the revocation of an administrative disposition cannot be asserted as a ground for disposition on the grounds that the disposition authority presented as the ground for the initial disposition and that it is not identical in basic facts (see Supreme Court Decision 2016Du44186, Aug. 29, 2017, etc.).

(2) However, the Defendant asserted that the instant temporary building was not used for construction purposes, such as the instant development project was virtually nonexistent and the order for purification of contaminated soil was withdrawn, and thus, the instant disposition was lawful, while asserting in the process of the lawsuit, that the instant temporary building was also asserted as the grounds of appeal.

(3) However, in light of the legal principles as seen earlier, it is difficult to view that the Defendant’s additional reason for “a temporary building for construction is no longer used for construction work” as stated above is identical in the original reason for disposition and basic factual relations, stating that “A written consent to the use of the site by a person with a right to a part of the co-ownership in the site has not been submitted.” Therefore, the Defendant is not allowed to add

(4) The court below erred by misapprehending the above legal principles and judged that the defendant's above assertion was a deviation or abuse of discretionary power, but the court below found that the rejection disposition of this case was unlawful. Therefore, the above error did not affect the conclusion of the judgment. Accordingly, the ground of appeal on this part is not acceptable.

2. As to the grounds of appeal regarding the imposition of charges for compelling compliance of this case (Ground of appeal No. 3)

A. Non-performance penalty under the Building Act is not a sanction against the past violation, which is a non-performance of a corrective order, but an administrative indirect compulsory enforcement means indirectly compelling the performance of an obligation by providing psychological pressure to an obligor by ordering the obligor to perform the obligation and notifying the obligor that the performance of the obligation is to be imposed if the obligation is not performed within the implementation period. In light of the intrinsic nature of the non-performance penalty, where the obligor subject to a corrective order has fulfilled the obligation before the enforcement fine is imposed, no enforcement fine may be imposed even after the lapse of the period prescribed by the corrective order (see Supreme Court Decision 2013Du15750, Dec. 11, 2014, etc.).

Furthermore, if a person liable to whom a corrective order was issued files an application or a report with the competent administrative agency in a justifiable manner to perform an obligation consistent with the purport of the corrective order, but the administrative agency unlawfully rejected or rejected it and thus the disposition is revoked, barring any special circumstance, deeming that it is impossible to impose enforcement fines on the ground of nonperformance of the corrective order accords with the purport of the enforcement fine system

B. Review of the reasoning of the lower judgment and the record reveals the following circumstances.

(1) On June 2013, the Defendant notified the Plaintiffs of the extension report of the retention period of the instant temporary building.

(2) On July 3, 2013, the Defendant issued a corrective order ordering the Plaintiffs to remove the instant temporary building on the ground that its retention period expires.

(3) On July 5, 2013, the Plaintiffs reported the extension of the retention period of the instant temporary building, but, upon the Defendant’s request to submit a written consent to the use of the site by all site owners, voluntarily withdrawn the report.

(4) Meanwhile, on August 5, 2013 and August 26, 2013, the Defendant issued a corrective order ordering the removal of the instant temporary building on two occasions.

(5) The Plaintiffs reported the instant extension again on August 30, 2013. However, the Defendant rendered a disposition rejecting the instant case on September 30, 2013 on the ground that some co-owner’s co-ownership right holders’ consent to use the site was not submitted.

(6) On October 1, 2013, the Defendant issued a disposition imposing each of the instant charges for compelling compliance on the ground that the Plaintiffs failed to comply with each of the above corrective orders.

C. Examining these facts in light of the legal principles as seen earlier, the instant extension report can be deemed as a lawful performance method to resolve the illegality of a temporary building, which is the premise of a corrective order, and the Defendant’s return of the instant extension report illegally and thus revoked the instant return disposition. Therefore, it is reasonable to deem that the Defendant cannot impose a enforcement fine on the Plaintiff on the ground that each corrective order was not implemented prior to the instant return disposition.

D. Some of the reasoning of the lower judgment is insufficient, but the lower court’s conclusion that the disposition imposing charges for compelling compliance of this case was unlawful is justifiable. Therefore, it cannot be deemed that some errors in the lower court’s fact-finding affected the conclusion of the judgment. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on the requirements for imposing charges for compelling compliance and the

3. Conclusion

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

Justices Kim Shin (Presiding Justice)