[1] In a case where a law was wholly amended, whether the transitional provision of the Addenda to the previous law becomes null and void (affirmative in principle), and in an exceptional case where the previous transitional provision remains effective

[2] Where an administrative agency issued a corrective order after the enforcement of the current Building Act, which was wholly amended by Act No. 8941, Mar. 21, 2008, with respect to a building constructed before the enforcement of the former Building Act, which was wholly amended by Act No. 4381, May 31, 1991, and the owner of the building fails to comply with the corrective order, whether enforcement fines may be imposed under the current Building Act (affirmative)

[1] If there is no explicit measure to amend or delete the transitional provision of the previous supplementary provision of the Act while amending the Act, the transitional provision of the supplementary provision of the Act does not become null and void as a matter of course, even if there is no express measure to revise or delete the transitional provision of the previous Act, but the transitional provision of the supplementary provision of the previous Act shall be deemed null and void as it is the same as the repeal of the previous Act and the enactment of a new Act in the case of the whole amendment of the previous Act. Therefore, the transitional provision of the previous Act shall also be deemed null and void as well as the previous provisions of the supplementary provision of the previous Act. However, even if there is no such provision, it shall be a separate provision that the transitional provision of the previous Act shall continue to apply, or even if there is no such provision, it shall remain effective only if there are special circumstances that the previous provision shall continue to apply without invalidation, by comprehensively taking into account the legislative background and purport of

[2] The purpose of the enforcement fine system is to ensure public welfare by continuously imposing an order to take corrective measures until implementation of a corrective order in order to ensure the effectiveness of an administrative order if the owner, etc. fails to comply with such order, even if the owner, etc. of the building does not engage in the violation, the administrative agency may issue a corrective order to the owner, and even if Article 6 of the Addenda of the Building Act (wholly amended by Act No. 4381 of May 31, 1991), the administrative agency may impose a disposition under the Building Act at the time of the violation of the order even if it becomes null and void due to the full revision of the Building Act (wholly amended by Act No. 4381 of May 31, 1991), and thus, there is no legal gap in law, and thus, Article 6 of the Addenda of the Building Act, which is the transitional provision for the existing building, has to be applied continuously after the revision of the Building Act (wholly amended by Act No. 8100, Apr. 28, 1998).

[1] Article 27 of the Administrative Litigation Act / [2] Article 56-2 (see current Article 113) of the former Building Act (wholly amended by Act No. 4381, May 31, 1991); Article 83 (see current Article 80) of the former Building Act (wholly amended by Act No. 7696, Nov. 8, 2005); Article 6 of the former Building Act (wholly amended by Act No. 8941, May 31, 1991)

[1] Supreme Court Decision 2001Du1168 Decided July 26, 2002 (Gong2002Ha, 2091) Supreme Court Decision 2006Du19419 Decided November 27, 2008 (Gong2008Ha, 1808)/ [2] Supreme Court Order 2002Ma1022 Decided August 16, 2002 (Gong2002Ha, 2277)

Plaintiff (Attorney Cho Chang-chul et al., Counsel for the plaintiff-appellant)

Head of Daegu Metropolitan City Central Government

Daegu High Court Decision 2011Nu1635 decided October 21, 2011

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. As to the assertion of misapprehension of legal principles as to applicable laws

A. An administrative disposition is in principle based on the amendment of the relevant statute, unless otherwise specified in the transitional provision, based on the amended Act and its standard (see, e.g., Supreme Court Decision 2008Du8918, Apr. 23, 2009). The legal nature of an unlawful state should be determined pursuant to the Act and subordinate statutes enforced at the time of the amendment, barring special circumstances (see, e.g., Supreme Court Decision 2010Du8072, Aug. 19, 2010). Meanwhile, even if there are no express measures to amend or delete the transitional provision of the previous Act while amending the Act, the transitional provision of the previous Act does not become null and void as a matter of course, even if there is no express provision on the transitional provision of the previous Act in the amended Act, it shall be deemed that the previous provision becomes null and void as well as the subsequent provision on the enactment of a new Act, and thus, it shall be deemed that the previous provision on the transitional provision of the previous Act remains null and void (see, 2000Du1616, supra.).

B. According to the Building Act (amended by Act No. 4381, May 31, 1991; hereinafter the “former Building Act”) which was wholly amended by Act No. 4381, Jun. 1, 1992, the former Building Act provides that a non-performance penalty may be imposed on a person who violates an order issued under the Building Act or the Building Act (hereinafter “violation”) (Article 83 of the amended Building Act). Under the former Building Act, Article 6 of the Addenda to the former Building Act provides that “An administrative agency may not impose a non-performance penalty upon the person who violated the previous provisions until the enforcement of the Act, notwithstanding the lapse of 0th order, even if the previous provisions on the disposal of the buildings in violation of the Building Act, the new provisions on the non-performance penalty, which were amended by Act No. 834, Mar. 21, 2008; thus, even if the new provisions on the non-performance penalty, the new provisions on the non-performance penalty may not be deemed as effective until the expiration of the Act.

C. In the same purport, the lower court was justifiable to have determined that the instant building was in violation of the Building Act prior to the enforcement of the amended Building Act, but its illegality continues to exist so far, and that the Defendant, an administrative agency, did not comply with the order of correction to its original state, and that the Defendant was lawful by applying the current Building Act to impose charges for compelling compliance. In so doing, the lower court did not err by misapprehending the legal doctrine as to

2. As to the assertion of mistake of facts against the rules of evidence regarding the period of extension

This part of the ground of appeal is merely an error in the selection of evidence and fact-finding, which are the exclusive authority of the lower court, and it does not constitute a legitimate ground of appeal.

3. Conclusion

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 Park Poe-young (Presiding Justice)