[1] Whether a non-performance penalty may be imposed, even if a corrective order under Article 69(1) of the Building Act was not yet corrected after it was issued, but the filing of an application for design change can be permitted for the date of permission

[2] Whether the measure of imposing a fine for negligence is illegal by applying the revised Building Act to the former Building Act

[1] Under Article 69(1) of the Building Act or Article 42(1) of the former Building Act (amended by Act No. 4381, May 31, 1991) with respect to the owner, etc. who failed to correct after receiving a corrective order, even if the date of permission for design change can be the date of permission upon filing an application for design change, a non-performance penalty (in a case where the former Building Act is applied, a fine for negligence may be imposed pursuant to Article 56-2(1) of the former Building Act) pursuant to Article 83(1) of the amended Building Act, unless a legitimate permission is granted.

[2] The provisions on charges for compelling execution under the Building Act are improved the provisions on fines for negligence under the former Building Act (amended by Act No. 4381 of May 31, 191), which is for non-compliance with a corrective order. However, since there are differences in the maximum limit and frequency of imposition, etc., it is unlawful if a fine for negligence was imposed on the charges for compelling execution by applying Article 56-2(1) of the former Building Act, which is before the new Building Act enters into force.

[1] Article 83(1) of the Building Act, Article 56-2(1) of the former Building Act (amended by Act No. 4381 of May 31, 191) / [2] Article 83(1) of the Building Act, Article 6 of the Addenda, Article 56-2(1) of the former Building Act (amended by Act No. 4381 of May 31, 1991)

[1] [2] Supreme Court Order 94Ma2283 dated July 26, 1995 (Gong1995Ha, 2955) / [1] Supreme Court Order 94Ma1415 dated July 21, 1995 (Gong1995Ha, 2935)

[Judgment of the court below]

Seoul District Court Order 94Ra552 dated August 7, 1995

The order of the court below is reversed and the case is remanded to the Seoul District Court Panel Division.

The grounds of reappeal are examined.

On the second ground for appeal

After receiving a corrective order under Article 69(1) of the Building Act or Article 42(1) of the former Building Act (wholly amended by Act No. 4381, May 31, 1991; hereinafter the same shall apply) with respect to the owner, etc. who failed to correct the order, even if the date of permission for design change can be the date of permission upon filing an application for design change of the snow company, a non-performance penalty under Article 83(1) of the amended Building Act (in cases where the former Building Act is applied, a fine for negligence under Article 56-2(1) of the former Building Act) may be imposed unless a legitimate permission is granted. The argument is without merit.

On the first ground for appeal

According to the reasoning of the order of the court below, the court below rejected the appeal by the Re-Appellant on the ground that the Re-Appellant applied Articles 83(1), 69(1), and 8 of the Building Act (amended by Act No. 4381 of May 31, 191), which found that there was a violation as stated in the judgment of the court below, and applied Articles 83(1), 69(1), and 8 of the Non-Contentious Case Litigation Procedure Act (amended by Act No. 4381 of May 31, 191), for the non-performance penalty of KRW 30,000,00 without permission extension as stated in the judgment of the Re-Appellant, it is clear that it exceeded the building-to-land ratio by extending it without permission as stated in paragraph (1) of the judgment of the Re-Appellant, and the non-performance penalty under the Building Act is imposed for the reasons that the non-performance penalty was corrected after the period of the corrective order or was legitimate later.

However, Article 6 of the Addenda to the amended Building Act provides that the disposal of a building in violation of the previous provisions prior to the enforcement of this Act shall be governed by the previous provisions, notwithstanding the provisions of Article 83, and according to the records of this case, the Re-Appellant may be recognized as having committed a violation as stated in the judgment of the court below in the execution of the construction after obtaining permission for extension of the above building on July 25, 1989. If the time when the Re-Appellant committed the above violation is before the enforcement of the amended Building Act, the disposition of the above building shall not be punished by a non-performance penalty under Article 83 of the amended Building Act, but shall be punished by a fine for negligence by applying Article 56-2 (1) of the former Building Act.

Although the provisions on enforcement fines under the revised Building Act improve the provisions on administrative fines under the former Building Act on the grounds of non-compliance with a corrective order, the upper limit and the frequency of imposition are different. Therefore, if the enforcement fines are imposed by applying Article 56-2(1) of the former Building Act to Article 83(1) of the amended Building Act, if the enforcement fines are imposed on the enforcement fines, it cannot be said that the enforcement fines are illegal.

Therefore, without examining whether the building in this case is a building in violation of the former Building Act, the order of the court below that the first instance court at the charge for compelling execution was lawful by applying Article 83(1) of the amended Building Act to the Re-Appellant is erroneous in the violation of Article 6 of the Addenda of the amended Building Act. The ground for appeal pointing this out is with merit.

Therefore, the order of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Yong-hun (Presiding Justice)