[1] Whether enforcement fines should be imposed and collected under the Act on Special Measures for Designation and Management of Development Restriction Zones, once they are imposed and collected (negative)

[2] The time when a corrective order, which serves as the basis for the imposition of enforcement fines under the Act on Special Measures for Designation and Management of Development Restriction Zones, should be issued (=after February 7, 2010, the enforcement date of the Act)

[1] According to Articles 30(1) and 30-2(1) and (2) of the Act on Special Measures for Designation and Management of Development Restriction Zones, enforcement fines may be imposed on a person who received a corrective order and failed to comply with the corrective order, and the purport that enforcement fines shall be imposed and collected if the person fails to comply with the corrective order within a reasonable period prior to the imposition of enforcement fines by the said specified period. Thus, the guidance for the imposition and collection of enforcement fines can be taken when the person fails to comply with the corrective order. Accordingly, whenever imposing and collecting enforcement fines, the procedure for the corrective order is not required again.

[2] The former Urban Planning Act (wholly amended by Act No. 6243 of Jan. 28, 200) prior to the enactment and enforcement of the Act on Special Measures for Designation and Management of Development Restriction Zones (amended by Act No. 9436 of Feb. 6, 2009) or the Act on Special Measures for Designation and Management of Development Restriction Zones (amended by Act No. 6243 of Feb. 6, 2000) only provides for a corrective order against a person who violates a restricted act in a development restriction zone. However, the Act was amended by Act No. 9436 of Feb. 6, 2009 to establish Article 30-2 of the Act on Special Measures for Designation and Management of Development Restriction Zones (amended by Act No. 9436 of Feb. 6, 2009) and the Act on Special Measures for Designation and Management of Development Restriction Zones (amended by Act No. 6243 of Feb. 28, 2009). The Act amended by Act No. 120600, supra.

[1] Articles 30(1) and 30-2(1) and (2) of the Act on Special Measures for Designation and Management of Development Restriction Zones / [2] Articles 30(1) and 30-2(1) of the Act on Special Measures for Designation and Management of Development Restriction Zones, Article 1 of the Addenda to the Act on Special Measures for Designation and Management of Development Restriction Zones (wholly amended by Act No. 6243, Jan. 28, 2000)

Plaintiff

The head of Gangseo-gu Busan Metropolitan Government (Seoul General Law Firm, Attorney Kim Ho-ho, Counsel for defendant-appellant)

Busan High Court Decision 2012Nu379 decided August 22, 2012

The judgment below is reversed, and the case is remanded to Busan High Court.

The grounds of appeal are examined.

1. According to Articles 30(1) and 30-2(1) and (2) of the Act on Special Measures for Designation and Management of Development Restriction Zones (hereinafter “Development Restriction Zones Act”), enforcement fines may be imposed on a person who fails to comply with a corrective order after being issued a corrective order, and the purport that enforcement fines shall be imposed and collected if the person fails to comply with the corrective order within a reasonable period prior to the imposition of enforcement fines. Thus, the guidance for the imposition and collection of enforcement fines is a procedure that can be taken when the person fails to comply with the corrective order. Thus, whenever imposing and collecting enforcement fines, the procedure for the corrective order should not be followed again.

Meanwhile, the former Development Restriction Zone Act (amended by Act No. 9436 of Feb. 6, 2009) or the former Urban Planning Act (amended by Act No. 6243 of Jan. 28, 2000; hereinafter the same) prior to the enactment and enforcement of the Development Restriction Zone Act (amended by Act No. 6243 of Jan. 28, 200) only provides for a corrective order against a person who violates the restriction on activities in a development restriction zone. However, the amendment of the Development Restriction Zone Act (Act No. 9436 of Feb. 6, 2009) newly established Article 30-2 of the Development Restriction Zone Act (amended by Act No. 9436 of Feb. 6, 2009), which provides for the enforcement order against a person who fails to comply with the corrective order, and Article 30 of the Act on the Enforcement Decree of a Development Restriction Zone (amended by Act No. 10680, Jan. 27, 2002).

2. In light of the circumstances indicated in its reasoning, the lower court determined that the Defendant’s imposition of the instant charge for compelling compliance was conducted through lawful procedures, and thus, determined that the Defendant’s imposition of the charge for compelling compliance was conducted on April 28, 200, and thus, revoked the first instance judgment and dismissed the Plaintiff’s claim, and rendered a judgment dismissing the Plaintiff’s claim, on the following grounds: (a) the document in which “an order for compelling compliance and a pre-announcement of imposition” sent by the Defendant to the Plaintiff on October 18, 2010 constitutes a corrective order stipulated in Article 30(1) of the Development Restriction Zone Act.

3. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine, the document as of April 28, 200, which was cited by the lower court as a corrective order, which served as the basis for the imposition of the instant charge for compelling compliance, was merely conducted in accordance with the former Urban Planning Act, and it is difficult to view that the document constitutes a corrective order under Article 30-2(1) of the Development Restriction Zone Act, and there was no circumstance that the Defendant issued the corrective order to the Defendant from February 7, 2010 to October 18, 2010 in light of the reasoning and the record of the lower judgment.

Therefore, the imposition of the instant charge for compelling execution, based on the guidance by document dated October 18, 2010 and its basis, is illegal as it was conducted without going through a lawful corrective order procedure that can serve as the basis thereof. Therefore, the lower court that concluded otherwise differently, contrary to what is alleged in the grounds of appeal, erred by misapprehending the legal doctrine on the requirements for the corrective order necessary for the imposition of the charge for compelling execution, which affected

4. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-dae (Presiding Justice)