The case holding that the disposition of removal of a building is illegal

According to Article 2 of the Administrative Vicarious Execution Act, an administrative agency’s order to remove a illegally constructed building in accordance with the procedure for vicarious execution shall be limited to the time when the person ordered to remove the building fails to perform the duty of removal and fails to perform such duty, and is deemed to seriously undermine the public interest. In this case, it is difficult to view that the removal order is seriously detrimental to the public interest by neglecting the building area solely on the ground that the building area exceeds the permitted area in contravention of the contents of the building permit, and as long as the removal of the building without any data can be deemed to seriously harm the public interest, such as urban aesthetic view, security, sanitation, fire fighting, and traffic, the removal order is an illegal disposition that fails to meet the requirements.

Article 2 of the Administrative Vicarious Execution Act

Plaintiff

The head of Yongsan-gu

The disposition taken by the defendant against the plaintiff on November 29, 1967 to repair the building on the ground of Yongsan-gu Seoul Metropolitan Government (number omitted) shall be revoked.

Litigation costs shall be borne by the defendant.

The same shall apply to the order.

On August 2, 1967, the Plaintiff: (a) constructed the building upon obtaining two building permits from the Defendant; (b) the Defendant took measures such as the entry of the above building in the order against the Plaintiff; (c) there is no dispute between the parties; (d) the Plaintiff’s construction permit was issued by the Defendant on the ground of the above order; (d) the Plaintiff’s construction permit was 2,00 square meters per annum and 57.60 square meters per annum; and (e) the Plaintiff’s construction construction was illegally extended to approximately 25 square meters per annum in total floor area to approximately 82.60 square meters; and (e) the construction exceeds 19.56 percent per annum in total floor area to the Plaintiff; and (e) the Defendant did not comply with the above order to suspend construction on several occasions; (e) the Plaintiff’s construction permit’s construction permit’s construction permit’s construction permit’s construction permit’s construction permit’s construction permit’s construction permit’s construction permit’s construction permit’s construction permit’s construction permit’s construction permit’s construction permit’s construction permit’s construction permit’s construction permit’s construction permit’s construction permit’s construction permit’s construction order.

Therefore, the above buildings cannot be deemed to constitute an illegal building under Article 42 (1) of the Building Act. In such a case, according to Article 2 of the Administrative Vicarious Execution Act, if the order for the mooring of this case, which was launched under the above circumstances, is legitimate, it is found that the administrative agency's mooring and removal pursuant to the procedure for vicarious execution, and if it is deemed that the administrative agency's failure to perform its removal duty and failure to perform such removal duty is very detrimental to the public interest. As acknowledged in this case, it is difficult to view that the building area exceeds the permitted area solely on the ground that it exceeds the permitted area in violation of the construction permit, it is difficult to view that the building area is seriously detrimental to the public interest by leaving it neglected, and there is no other evidence to deem it neglected without removing the above building that it is extremely detrimental to the public interest, such as urban landscape, security, sanitation, fire fighting, traffic, etc., and therefore, the disposition in this case is ultimately an illegal disposition that does not meet the requirements.

If so, the plaintiff's claim for cancellation of the disposition of the succession of this case is reasonable, and this is accepted, and the costs of the lawsuit are assessed against the losing party and it is so decided as per Disposition.

Judges Jeong Tae-won (Presiding Judge)