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서울고등법원 2017.11.10 2017누54304
건축이행강제금부과처분취소
Text

1. The part of the judgment of the court of first instance against the plaintiff, which orders revocation below, shall be revoked.

Defendant.

Reasons

1. The reasoning behind the disposition and the reasoning behind this part of the lawsuit in this case is as follows, and the corresponding part of the reasoning of the judgment of the court of first instance (from No. 2 to No. 414 of the judgment of the court of first instance) is the same with that of the relevant part of the reasoning of the judgment of the court of first instance, except for the addition of some of the following. Thus, it shall be cited in accordance with Article 8(2) of the Administrative Litigation Act,

▣ 제1심판결서 제2쪽 제10행 다음에 아래 내용을 추가한다.

The details of non-performance penalty imposed by the Defendant are as follows: 626,000; 626,341; 380; 35,948; 001; 10.18; 26,000; 626,341; 380; 35; 948; 001; 10.18; 0.03; 626,00; 1,918; 940; 2.18; 0.18; 0.036,03; 00; 1,000; 1,918; 940; 36, 100; 308; 45; 206; 308; 4,506; 308; 4,605; 10. 36, 106, etc. of housing without permission;

2. Judgment as to the main claim

A. The gist of the Plaintiff’s assertion lies in the following illegal defects. As such, among the instant disposition, the part of KRW 10,228,000 calculated by mistake due to the defect should be revoked.

Plaintiff’s assertion

With respect to the assertion of defects in the application of the rescue index relating to the extension of the 4th floor rooftop, some amount of the instant disposition was reduced as seen earlier by the Defendant.

1) Since the portion of the instant building pertaining to the unauthorized change of the purpose of use of the first floor among the instant buildings was directly changed after construction in around 1997, 3/100, which is the imposition rate prescribed by the Enforcement Decree of the Building Act at that time, should be applied, and the application index of the remaining rate by the number of years elapsed of the building should be applied from 1997, which is the new construction date. Nevertheless, the Defendant shall be applied as of 2012, which is the date of detection, by the number of years elapsed.

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