[1] In a case where a person subject to a disposition or an order to take measures under Article 133(1) of the National Land Planning and Utilization Act violates it, whether such disposition or order to take measures is necessary to be lawful in order to punish him/her under Article 142 of the same Act (affirmative)

[2] In a case where a building is constructed or changed its use, which is not in conformity with a district unit plan, whether the transferee of the building can take measures such as disposal or reinstatement under Article 133(1) of the National Land Planning and Utilization Act (negative)

[1] Articles 133(1) and 142 of the National Land Planning and Utilization Act / [2] Articles 54 and 133(1)1 of the National Land Planning and Utilization Act

[1] [2] Supreme Court Decision 90Do1709 delivered on August 18, 1992 (Gong1992, 2790) Supreme Court Decision 2001Do2841 Delivered on May 14, 2004 (Gong2004Sang, 1031) / [1] Supreme Court Decision 96Do1237 delivered on July 12, 1996 (Gong196Ha, 2575)

Defendant

Defendant

Attorney Soh Jeong-won

Seoul Western District Court Decision 2006No646 Decided September 19, 2006

The judgment of the court below is reversed, and the case is remanded to the Seoul Western District Court Panel Division.

The grounds of appeal are examined ex officio prior to judgment.

In order for a person to whom a disposition or an order to take measures under Article 133(1) of the National Land Planning and Utilization Act (hereinafter “the Act”) has been issued to impose a punishment as prescribed by Article 142 of the Act as a result of the violation, the disposition or order to take measures shall be lawful. Even if the disposition is not null and void automatically, it cannot be established as a violation of Article 142 of the Act since it is recognized as an illegal disposition (see Supreme Court Decisions 90Do1709, Aug. 18, 1992; 2001Do2841, May 14, 2004; 2001Do2841, May 14, 2004). Meanwhile, in cases where a building is constructed or changed its use is not in conformity with a district unit plan, an administrative agency shall only construct the building or a person who has acquired the building without any explicit provision such as a disposition or order to take measures under Article 133(1) of the Act.

According to the facts charged in this case, since Article 54 of the Act and Article 54 of the Si/Gun/Gu Urban Design Guidelines provide that the household of the building on the land of this case may reside not more than three floors and not more than three households, the party who illegally increased the number of households into nine households is not the defendant but the former owner, and since the restoration order was issued by Non-Party 1 to the original state against the defendant who purchased the land and building of this case from Non-Party 1, the above restoration order is illegal.

Therefore, since the defendant did not comply with such corrective order, he cannot be punished as a violation of an order to take measures under Article 142 of the Act, etc., the court below maintained the first instance court which found the defendant guilty of the facts charged of this case, and there is an error of law by misunderstanding the legal principles as to the violation of an order to take measures under Article 142 of the Act, which affected the conclusion of

Therefore, without examining the argument in the grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Ill-sook (Presiding Justice)