[1] Whether enforcement fines should be imposed and collected under the Act on Special Measures for Designation and Management of Development Restriction Zones, once they are imposed and collected (negative)

[2] The time when a corrective order, which serves as the basis for the imposition of enforcement fines under the Act on Special Measures for Designation and Management of Development Restriction Zones, should be issued (=after February 7, 2010, the enforcement date of the Act)

[1] Articles 30(1) and 30-2(1) and (2) of the Act on Special Measures for Designation and Management of Development Restriction Zones / [2] Articles 30(1) and 30-2(1) of the Act on Special Measures for Designation and Management of Development Restriction Zones, Article 1 of the Addenda to the Act on Special Measures for Designation and Management of Development Restriction Zones ( February 6, 2009)

Plaintiff 1 and two others

See Attached List of Plaintiffs and Appellee (Attorney Kim Jong-soo et al., Counsel for the plaintiff-appellant)

The head of Gangseo-gu Busan Metropolitan Government (Seoul General Law Firm, Attorney Kim Ho-ho, Counsel for defendant-appellant)

Busan High Court Decision 2012Nu355 decided July 27, 2012

All appeals are dismissed. The costs of appeal between Plaintiffs 1, 2, and 3 and the Defendant are assessed against the Plaintiffs, and the remaining costs of appeal between the Plaintiffs and the Defendant are assessed against the Defendant, respectively.

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

1. As to the grounds of appeal by Plaintiffs 1, 2, and 3

A. On the grounds indicated in its reasoning, the lower court determined that: (a) the corrective order that the Defendant sent to the said Plaintiffs from October 20, 2010 to October 25, 2010 clearly stated that it would be corrected for a certain period of time; (b) constitutes a legitimate corrective order under Article 30(1) of the Act on Special Measures for Designation and Management of Development Restriction Zones (hereinafter “Development Restriction Zones Act”); and (c) the document No. 9-1 (Public Notice) sent to the said Plaintiffs on November 17, 2010, stating that the document No. 9-1 (Public Notice), a document sent by the said Plaintiffs on November 17, 2010, stating that the enforcement fine should be imposed if not carried out until that time, constitutes a legitimate guidance as provided in Article 30-2(2) of the Development Restriction Zones Act; and thus, (c) the Defendant’s disposition imposing the enforcement fine against the said Plaintiffs did not constitute an unlawful procedural violation

Examining the reasoning of the lower judgment in light of the evidence duly admitted, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the period to be determined in the guidance for imposition

B. On the grounds indicated in its reasoning, the lower court determined that the enforcement fine against the above Plaintiffs cannot be deemed unlawful on the ground that it was excessively excessive.

Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine on the severity of the amount imposed by enforcement fines, contrary to what is alleged in the grounds of appeal.

2. As to the Defendant’s ground of appeal

A. According to Articles 30(1), 30-2(1), and 30-2(2) of the Development Restriction Zone Act, a corrective order may be issued to a person who fails to comply with the corrective order after being issued a corrective order, and the purport that the enforcement fine shall be imposed and collected in writing if the person fails to comply with the order within the given period prior to the imposition of the enforcement fine. Thus, the guidance for the imposition and collection of the enforcement fine is a procedure that can be taken when the person fails to comply with the corrective order. Accordingly, whenever the enforcement fine is imposed and collected, it is unnecessary to go through the corrective order procedure again.

However, Article 30-2 of the Development Restriction Zone Act, which provides for enforcement fines, was newly established on February 6, 2009 by Act No. 9436, and Article 30 of the same Act also amended on the basis of which enforcement fines are imposed. With respect to removal, closure, remodeling, or relocation of buildings, structures, etc., a corrective order was issued for a fixed period different from the previous provisions. The Addenda of the above Act provides that "this Act shall enter into force on the date six months have elapsed after its promulgation: Provided, That the amended provisions of Articles 30 and 30-2 shall enter into force on the date one year has passed after its promulgation: the amended provisions of Articles 30 and 30-2 shall enter into force on February 7, 2010; the amended provisions on the enforcement fines and the corrective orders, which form the basis for the imposition of enforcement fines, do not have any general transitional provisions on the corrective orders, etc. issued pursuant to the previous provisions at the time of the enforcement of the Development Restriction Zone Act. In light of the above provisions under the Development Restriction Zone Act.

B. For the reasons indicated in its holding, the lower court determined that: (a) separate measures from measures to issue a corrective order and measures to guide when imposing a non-performance penalty under the Development Restriction Zone Act; and (b) procedures, such as corrective order and measures, should undergo again whenever repeatedly imposing a non-performance penalty; and (c) the document of the title, “the corrective order and measures to impose a non-performance penalty (GB area)” sent on October 18, 2010, or “the corrective order and measures to impose a non-performance penalty on November 17, 2010,” which sent on November 17, 2010, should be deemed to be “the order” under Article 30-2(2) of the Development Restriction Zone Act rather than the corrective order under Article 30(1) of the Development Restriction Zone Act, is unlawful on the ground that the Defendant’s non-performance penalty cannot be deemed to be a lawful corrective order without any reasonable period of time for implementing the corrective order.

C. Examining the reasoning of the lower judgment in light of the legal doctrine as seen earlier, the lower court’s determination that the corrective order under the Development Restriction Zone Act should be separate from the instruction of the correction order under the said Act is lawful, but the part of the lower judgment’s determination that the corrective order procedure should be followed every time when imposing

However, in light of the evidence duly admitted, the above document dated October 18, 2010 and the document dated November 17, 2010 appear to be a guidance under Article 30-2 (2) of the Development Restriction Zone Act, and even if it is deemed as a corrective order, it cannot be viewed as a corrective order since there is no reasonable period of time to implement the corrective order, and there is no error in the judgment of the court below in the misapprehension of legal principles as to the requirements for the imposition of enforcement fines or the guidance thereof, contrary to the allegations in the grounds of appeal. Furthermore, in light of the reasoning of the judgment below and the evidence duly admitted, the circumstance that the defendant issued the corrective order to the plaintiffs from February 7, 2010 to the delivery of the above document does not appear to be that the defendant issued the corrective order

Therefore, it is illegal that the guidance by the above documents and the imposition of the charge for compelling execution of this case based on the above documents against the remaining plaintiffs except the plaintiffs 1, 2, and 3 were conducted without going through the corrective order procedure which can be the basis thereof. Therefore, the court below's conclusion is not erroneous in the misapprehension of law which affected the conclusion of the judgment despite the error above.

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.

[Attachment] List of Plaintiffs and Appellee: omitted

Justices Shin Young-chul (Presiding Justice)