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(영문) 서울고등법원 2017.03.16 2016누75229
건축이행강제금부과처분취소
Text

1. Of the judgment of the court of first instance, the part against the plaintiff falling under the order of revocation is revoked.

Reasons

1. The reasoning of the court of first instance’s explanation concerning this case is that “the instant disposition imposing a non-performance penalty” under the second 15th of the judgment of first instance is “the instant disposition imposing a non-performance penalty,” and except that the sixth 4 to eighth 8th of the judgment of first instance is as indicated in the reasoning of the judgment of first instance. Thus, this is cited in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2. The defendant asserts that "the defendant violated the main sentence of Article 16 (1) of the Building Act by changing the purpose of use without permission, and if the plaintiff violated Article 16 (1) of the Building Act, a corrective order under Article 79 (1) of the Building Act may be issued, and since the plaintiff failed to comply with such corrective order, it may impose a non-performance penalty pursuant to the main sentence of Article 80 (1) of the Building Act. However, the defendant imposed an amount equivalent to 50% of the standard market price on the ground that "when a building was constructed without permission or a report" under Article 80 (1) 1 of the Building Act constitutes "where a building was constructed without permission or a report" as a non-performance penalty. Even if the plaintiff violated Article 16 (1) of the Building Act by failing to obtain permission for changing the purpose of use, it cannot be deemed that it constitutes "where the building was constructed without permission or without reporting" under Article 16 (1) of the Building Act, it cannot be accepted the defendant's assertion that it was subject to a corrective order under Article 79 (10 (2).

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