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(영문) 서울고등법원 2018.04.19 2017누81917
건축이행강제금부과처분취소
Text

1. The defendant's appeal is dismissed.

2. The plaintiff's claim added by this court is dismissed.

3. The appeal costs.

Reasons

The court's explanation of this case is identical to the reasoning of the judgment of the court of first instance (including the attached Form) other than the part written by the court of first instance as to this case in paragraph (2) below. Thus, the court's explanation of this case is citing it in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence of

(1) The first instance court’s rejection of the Defendant’s assertion, even if the evidence submitted to the first instance court and this court was examined, does not significantly differ from the Defendant’s assertion in the first instance court, and the first instance court’s rejection of the Defendant’s assertion is justifiable). The second instance court’s rejection of the first instance court’s rejection of the first instance court’s argument was made “Article 80(5)” as “Article 80(4).”

Part 2 of the judgment of the first instance court, the 18 and 19th "(main claim) of the first instance court is null and void. Even if the 2-1 disposition of this case is lawful, the 2-1 disposition of this case shall be null and void."

No. 21 and No. 3 of the first instance judgment shall be deleted, and the "No. 11 of the first instance judgment (the main claim)" shall be deleted, and the "No. 5 of the first instance judgment (the main claim part)" shall be deleted.

The following shall be added between 8 pages 3 and 4 of the first instance judgment:

“3) In an administrative litigation seeking confirmation of the invalidity of a judgment on the instant disposition No. 2-2 by asserting the invalidity of the disposition, the Plaintiff is liable to assert and prove the grounds for invalidity of the disposition (see, e.g., Supreme Court Decision 2013Du19493, May 16, 2014). In addition, as seen earlier, it is insufficient to say that there is an unlawful reason for the disposition to be deemed null and void as a matter of course, and it should be objectively obvious that the defect violates the important part of the law and regulations, and should

On the other hand, even according to the plaintiff's assertion itself, the defect in the disposition No. 2-2 of this case was served with the correction order, etc. related to the above disposition, but it was done without giving a reasonable period for the correction order to be carried out voluntarily, or goes against the principle of proportionality.

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