(영문) 수원지방법원 2017.10.31 2017구합65273

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(영문) 수원지방법원 2017.10.31 2017구합65273

철거부작위위법확인

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1. The instant lawsuit shall be dismissed.

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

Reasons

1. The Plaintiff is the owner of the land and the building on the ground thereof (hereinafter “instant land and building”) in Ansan-gu, Ansan-gu, and C is a person who occupies a temporary building of approximately two square meters attached to the instant building (hereinafter “instant provisional building”).

[Ground of recognition] Facts without dispute, each entry of Gap evidence 1 to 4 (including provisional number), and the purport of the whole pleadings

2. The Plaintiff asserted that the Plaintiff had interfered with the Plaintiff’s exercise of ownership due to the possession of C of the instant building, which was illegally constructed as the owner of the instant land and building attached to the said building, but the Defendant imposed a non-performance penalty on C instead of ordering the removal of the instant building.

However, as C continues to possess the building of this case despite the Defendant’s charge for compelling the performance, it is reasonable to deem that the Defendant has a duty to remove the building directly instead of imposing the charge for compelling the performance.

Therefore, it is confirmed that the omission by the Defendant on behalf of the Plaintiff, which did not remove the building of this case, is unlawful.

3. To make entries in the attached statutes concerned;

4. Determination of legality of a lawsuit

A. A lawsuit seeking confirmation of illegality of an omission is instituted only by a person who has filed a petition for a disposition and has legal interest in seeking confirmation of illegality of an omission (Article 36 of the Administrative Litigation Act). In cases where a party fails to file a petition to an administrative agency for an administrative act, or a party does not have any legal or logical right to demand that the relevant administrative act be carried out, the lawsuit seeking confirmation of illegality of the omission cannot be deemed unlawful since it cannot be deemed that there is no standing to sue or an illegal omission subject to an appeal litigation.

(See Supreme Court Decision 2005Du7853 Decided October 26, 2007, etc.). B.

2.3

참조조문

-행정소송법 제36조

참조판례

-대법원 2007. 10. 26. 선고 2005두7853 판결

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