Plaintiff

Head of Daegu Metropolitan City Central Government

September 9, 2011

Daegu District Court Decision 2010Guhap209 Decided June 22, 2011

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

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

1. Purport of claim

The Defendant’s disposition of imposing enforcement fines of KRW 3,796,370 against the Plaintiff on October 20, 2009 is revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Details of the disposition;

A. The Plaintiff, along with Nonparty 1, on September 2, 2008, purchased from Nonparty 2, 3, and 4 on September 2, 2008, the building (number 1 omitted) 148.8m2 and the three-story neighborhood living facilities building (hereinafter “building No. 1”) on the ground, the same (number 2 omitted) as that of Nonparty 1, who is his father, and the building on the 49.6m2m2 and the 1st floor of the place of business for the assessment of saples (hereinafter “building No. 2 of this case”), and completed the registration of ownership transfer on October 1 of the same year (number 5/7 of the Plaintiff’s shares and the 1m2/7m2).

B. On July 1, 2009, the Defendant received a report from Nonparty 5, who leased Nonparty 2 and 3 of the instant building No. 1, to the effect that “the Plaintiff removed the boundary walls between the instant building Nos. 1 and 2 without undergoing the procedures under the Building Act.” As a result of an on-site investigation on July 14, 2009, the Defendant discovered that the instant building No. 1 had been extended without undergoing the permission or reporting procedure under the Building Act (see subparagraph 20 of the Evidence No. 20).

C. On July 15, 2009, the Defendant ordered the Plaintiff to correct the violation by August 13, 2009, on the ground that the instant building Nos. 1 and 2 was extended without going through the procedures under Articles 11 (Building Permit) and 14 (Building Report) of the Building Act. On August 17, 2009, the Defendant ordered the Plaintiff to correct the violation by September 14, 2009, and notified the Plaintiff that the enforcement fine may be imposed if the Plaintiff did not correct the violation by the said date.

D. The Defendant imposed a non-performance penalty of KRW 3,796,370 ( = KRW 2,593,050 + KRW 1,203,320) on the Plaintiff on October 20, 209 pursuant to Article 80 of the Building Act (hereinafter “instant disposition”).

[Reasons for Recognition] The facts without dispute, Gap evidence 1, 2, Eul evidence 1 to Eul evidence 7, Eul evidence 9, Eul evidence 15, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

(1) The plaintiff's assertion

The instant disposition should be revoked in an unlawful manner for the following reasons.

(A) On or around June 1956, the outer wall between the buildings Nos. 1 and 2 of this case was removed and the roof was extended to a single building connected thereto before June 1975, and the Corporation executed around July 2009 by the Plaintiff was removed the partitions of both inner passages between the toilets in the building Nos. 1 and 2 of this case and the emergency passage in the above condition.

(B) According to the Building Act (amended by Act No. 4381, May 31, 1991) amended by Act No. 4381, the former Building Act (amended by Act No. 4381, “the amended Building Act”) the enforcement fine may be imposed on a person who violated the order. However, since Article 6 of the Addenda of the amended Building Act provides that only a fine for negligence may be imposed on a building prior to the amendment, the extension section of this case extended before or after the enforcement date of the amended Building Act, which was extended before or after the expiration of the 1956 Building Act, is illegal, but only an administrative fine may be imposed upon the person who violated the former Building Act, and the enforcement fine may not be imposed.

(2) The defendant's assertion

The revised Building Act was wholly amended by Act No. 8974 on March 21, 2008 (hereinafter referred to as the "current Building Act") and imposed a non-performance penalty by applying the current Building Act for the following reasons. The instant disposition is legitimate.

(A) Since the outer wall between the first and second buildings of this case was removed and the roof was extended to a single building connected to it on July 2009, the current Building Act shall apply.

(B) Even if the outer wall between the building Nos. 1 and 2 of this case was removed and its roof was extended to one building on or before around 1956 or at latest around June 1975, as alleged by the Plaintiff, the instant disposition is a disposition imposing enforcement fines to correct the current illegal building, and thus, the current Building Act should apply.

B. Relevant statutes

As shown in the attached Form.

C. Determination

(1) The time of extension of the extension of the instant case

(A) If the time of extension of the extension portion of this case was to be the first patrol officer on July 2009 alleged by the Defendant, it is legitimate to impose enforcement fines under the current Building Act. However, if the Plaintiff claims before around 1956 or around June 1975, it is necessary to examine whether the former Building Act or the amended Building Act and any Act of the current Building Act should be applied. However, in an appeal litigation seeking the cancellation of administrative dispositions, the burden of proof on the legality of the disposition is, in principle, against the Defendant, the disposition authority.

(B) In the case of this case, although there is no dispute between the parties that the Plaintiff performed removal works inside the building Nos. 1 and 2 of this case on July 2009, it is insufficient to recognize the defendant's assertion that the Plaintiff extended the extension of the building of this case due to the defendant's testimony of the witness Nos. 13, 14, and 15, and the witness No. 5 of the court of first instance submitted by the defendant. On the other hand, there is no evidence to acknowledge it. However, if the witness Nos. 5, 6, and 17 and the witness No. 2's testimony of the court of first instance show the purport of the whole pleadings, the following circumstances can be seen, i.e.,,,, the part of the building No. 1 and 2 of this case on Sep. 2, 2008, which was sold to the Plaintiff on Sep. 1 and 2 of this case, 2008.

(2) Acts applicable to the instant disposition

(A) If the instant extension was extended prior to June 1975, as alleged by the Plaintiff, then the former Building Act or the amended Building Act and the current Building Act should be examined as to which legal provisions should apply.

In other words, according to the provisions of the above related Acts and subordinate statutes, the former Building Act imposed a fine for negligence in the event of non-compliance with a corrective order in relation to unauthorized extension. The revised Building Act revised that impose a fine for negligence in the same case, but the revised Building Act imposed a fine for negligence in accordance with the previous provisions if the non-compliance with a corrective order after the enforcement of the amended Building Act in relation to unauthorized extension of the Building Act (see Supreme Court Order 2004Ma953, May 22, 2006). However, the current Building Act provides that the enforcement fine shall be imposed in the event of non-compliance with a corrective order, such as the revised Building Act, and the Addenda provides that "the previous provisions apply to acts before the enforcement of this Act." Therefore, the previous provisions of the Building Act, such as the supplementary provisions of the amended Building Act, does not provide for the "disposition of buildings in violation of the previous provisions" before the application of the Building Act, i.e., the current Building Act, as it applies to the instant disposition.

(B) If there is no explicit measure to amend or delete the transitional provision of the previous supplementary provision of the Act while amending the Act, the transitional provision of the supplementary provision of the Act does not become null and void as a matter of course, even if there is no express measure to revise or delete the transitional provision of the previous Act, but the transitional provision of the previous supplementary provision of the Act shall be deemed null and void as well as the previous main provision of the Act, since the transitional provision of the previous Act shall be deemed null and void, in principle (see Supreme Court Decision 2001Du1168, Jul. 26, 2002; 2001Du1168, Jul. 26, 2002; 2009Du19619, Nov. 27, 2008).

(C) In the instant case, in light of the following circumstances revealed by the relevant statutes and legal principles as seen earlier, it is reasonable to interpret that even if a building violating the Act was a building built before the amendment of the Building Act was implemented, a corrective order shall be issued after the implementation of the current Building Act, and if a non-performance penalty, etc. is imposed because it did not comply with the corrective order, it shall be imposed under the current Building

1) As seen earlier, a non-compliant building that had been constructed before the enforcement of the amended Building Act was subject to a fine for negligence under Article 6 of the Addenda to the amended Building Act as well as the former Building Act. However, unless there is a transitional provision, the previous provision (including the transitional provision of the subordinate provision) was fully invalidated, and as a result, it cannot be subject to a fine for negligence any more after the enforcement of the current Building Act, and only the fine for negligence can be imposed under Article 83 of the current Building Act.

2) Article 12 of the Addenda to the current Building Act is a transitional provision on penal provisions or administrative fines, and there is no room to interpret that the term “administrative fine” includes a building subject to administrative fines under the former Building Act as well as Article 6 of the Addenda to the amended Building Act. However, in light of the fact that Article 12 of the Addenda to the current Building Act provides different provisions from the provisions of the amended Building Act stipulating “as to the disposal of a building in violation of the previous provisions before this Act enters into force,” it cannot be interpreted that the term “violation” is subject to administrative fines under the previous provisions, rather than the disposal of a building in violation of the previous provisions, before the enforcement of the current Building Act, and that Article 12 of the Addenda to the current Building Act is clear and systematic, and it cannot be interpreted that the provision on enforcement fines is included in all administrative fines under the former Building Act, which is prior to the enactment of the enforcement fine.

3) There is no provision regarding Article 6 of the Addenda to the amended Building Act while taking various transitional measures as well as penal provisions or administrative fines under the Addenda to the Building Act regarding building standards or building reports.

4) Although Article 6 of the Addenda to the amended Building Act did not comply with the corrective order issued after the enforcement of the amended Building Act, if a violation of the Building Act, which was subject to the corrective order, was committed before the enforcement of the amended Building Act, was an exception to the previous provisions on the grounds that the violation of the Act was committed before the enforcement of the amended Building Act. Thus, if the current Building Act does not provide for a separate provision that the effect of Article 6 of the Addenda to the amended Building Act remains effective, it should, in principle, be taken again when the violation is committed, regardless of whether it is a enforcement fine or a fine for negligence.

5) In light of the fact that Article 6 of the Addenda to the amended Building Act is invalidated and there is no circumstance to deem that there is a legal blank situation, there is no special circumstance to deem that Article 6 of the Addenda to the amended Building Act does not lose its effect despite the enforcement of the current Building Act.

(3) Sub-decisions

Therefore, the instant disposition imposing a non-performance penalty on the extension of the instant case is lawful, and contrary thereto, the Plaintiff’s assertion is without merit (in light of the content of the instant disposition, the size of the extension part, and the details of the violation, it is difficult to deem that there was an error of law that deviates from or abused the discretion of the instant disposition imposing a non-performance penalty equivalent to 50

3. Conclusion

The plaintiff's claim of this case is dismissed due to the lack of reason, and the judgment of the court of first instance is unfair with different conclusions, and the plaintiff's claim is revoked and dismissed.

[Attachment Form 5]

Judges Kim Chang-sung (Presiding Judge) Kim Jong-sung free of charge