Request for the cancellation of a disposition by the court and the petition for the illegality of the preceding act

If it is impossible to dispute the illegality due to the failure of the administrative agency to file a lawsuit against the order to reinstate the original order of the administrative agency, which is prior to the disposition, it cannot be argued that the preceding order is the law in the order of the vicarious execution, which is the subsequent act.

Article 3 of the Administrative Vicarious Execution Act

Supreme Court Decision 4293Da31 Delivered on December 21, 1961

Supreme Court Decision 75Nu218 delivered on December 9, 1975

[Judgment of the court below]

Busan City Mayor (Attorney Han Han-dae, Counsel for defendant-appellant)

Daegu High Court Decision 80Gu118 delivered on December 16, 1980

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

The Plaintiff’s attorney’s ground of appeal is examined.

With respect to Section 1

According to the records, on June 17, 1980, the defendant ordered the plaintiff to voluntarily remove and restore the building of this case on the vicinity of the river of this case from June 30, 1980 on the ground that the period of permission to occupy and use the river of this case has expired, and thus, the defendant ordered an administrative agency's act under the law prior to the disposition of the vicarious execution of this case. On the other hand, with respect to the defendant's order, the plaintiff is also a person who has the right to file a lawsuit or lawsuit and the plaintiff did not go through the procedure of demanding the plaintiff to correct the violation of the law, and it is difficult to recognize that the above restoration order of the defendant, the prior act of this case, is unlawful in addition to the plaintiff's right to seek the cancellation of the above order of dismissal of this case.

Therefore, the plaintiff, who did not go through the procedure of appeal against the above order which is the preceding act, cannot assert the illegality of the disposition of appeal on the ground of the illegality of the above order in the disposition of appeal for the vicarious execution of this case which is the subsequent act, which is the subsequent act, (see Supreme Court Decision 429Da31, Dec. 21, 1961). Therefore, the decision of the court below that rejected the plaintiff's assertion that the defendant's order of reinstatement of this case was unlawful is just, and there are no errors in the misapprehension of the legal principles, such as the theory of appeal, or in the misapprehension of the legal principles. Therefore, the argument is without merit

With respect to Section 2

According to the court below's duly accurate facts, the Plaintiff's area where the instant dog and a building were constructed is part of the area where the urban planning decision was publicly announced by the administrative agency as a road park until the time the urban planning facility is pointed out as a matter of its reasoning, and the upper upstream of the instant repair, the removal and reconstruction work on the site of the park from the Plaintiff's occupation and use to about 500 meters, and the Plaintiff's occupation and use portion and side are now existing, but there is a lot of traffic volume as much as the traffic volume is high, and there is a lot of oarss around the 3rd section of the said occupation and use portion, which is connected with the above 3rd section of the said road, and thus, it is convenient for the vehicle traffic when the said occupation and use portion is opened to the road.

The facts are as follows: (a) regardless of the time of completion of the project for the reconstruction of a river as a road park where the building owned by the plaintiff, which is constructed on the opening of the river of this case, conflicts with the plan that the administrative agency intends to serve in the public with a road system; and (b) the time of completion of the project for the reconstruction of a river as a road park, it shall be interpreted that the failure to remove the building above shall cause serious harm to the public interest, barring any special circumstance; and (c) therefore, (d) the judgment of the court below that the requirements for mooring measures are satisfied with the same purport shall not be deemed to have

Therefore, the appeal is dismissed and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices O Sung-sung(Presiding Justice)