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(영문) 서울고등법원 2014.10.14 2014누51090
이행강제금부과처분취소
Text

1. Of the judgment of the court of first instance, the imposition of KRW 27,043,00 for each of the charges for compelling compliance that the Defendant rendered to the Plaintiff on April 9, 2014, is 1,226.

Reasons

1. Details of the disposition;

A. The Plaintiff and C are the owners of the land building B in Jung-gu, Seoul (hereinafter “instant building”), and the Plaintiff’s share is 2/3 and C’s share is 1/3.

B. On April 9, 2014, the Defendant discovered unauthorized expansion of 7.2 square meters of the instant building and unauthorized reconstruction of 151.57 square meters of the instant building on the grounds thereof, and imposed charges for compelling performance on the Plaintiff on April 9, 2014, each of which was calculated in accordance with the “Standards for Adjustment of the Standards for Building and Other Articles 80 and 79(1) of the Building Act” (hereinafter “Standards for Adjustment of Standard for Adjustment”) in accordance with attached Table 1, when the Defendant imposed charges for compelling performance on the Plaintiff each year since 2006.

(hereinafter referred to as “each disposition of this case”). 【The ground for recognition of this case’s existence of no dispute, entry in Gap’s Evidence Nos. 1, 2, 4, and 7, and Eul’s Evidence No. 14 (including each number; hereinafter the same shall apply), the purport of the whole pleadings.

2. Whether the disposition is lawful;

A. The gist of the Plaintiff’s assertion 1) The enforcement fine under the Building Act can be imposed only after the pre-announcement of the imposition of enforcement fine, if the owner, etc. fails to comply with the order after a considerable period of time after ordering the owner, etc. to take corrective measures. At the same time, the Defendant did not provide the Plaintiff with an opportunity to implement the corrective order by giving the corrective order and the pre-announcement of the imposition of enforcement fine in one document, and thus, each of the dispositions of this case

(2) The Defendant’s calculation guidelines for the statutory standard for the extension/renovation building, etc., based on which each of the above charges for compelling compliance was calculated, do not have any legal effect, as there is no delegation of superior laws, such as the Building Act, and thus, it is unlawful as it does not have any substantial ground to distinguish the concept from that. Therefore, each of the instant cases is based on the ground that the concept is unclear and it is unlawful.

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