Plaintiff 1 and one other (Law Firm continental Aju, Attorneys Park Ba-min, Counsel for the plaintiff-appellant)

The head of Yongsan-gu Seoul Metropolitan Government (Attorney Hwang-sik, Counsel for defendant)

April 3, 2014

1. Each of the plaintiffs' claims is dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

The Defendant’s disposition rejecting a report on extension of the retention period of a temporary building against the Plaintiffs on September 30, 2013, and revocation of each disposition imposing enforcement fines of KRW 16,111,870 against Plaintiff 1 on October 1, 2013, and KRW 274,461,260 against Plaintiff 2.

1. Details of the disposition;

A. The plaintiffs' report on construction of temporary buildings

(1) On May 20, 2009, the Defendant issued an order to take measures to purify contaminated soil to the Korea Railroad Corporation, the owner of land, pursuant to Article 11(3) of the Soil Environment Conservation Act, on the ground that the amount of soil contamination under Article 4-2 of the Soil Environment Conservation Act exceeds the level of soil contamination under Article 4-2 as a result of the daily soil survey conducted by Yongsan-gu, Yongsan-gu, Seoul (hereinafter “instant project”), Yongsan-gu, Seoul, which is an international business district development project for the station area of Yongsan-gu (hereinafter “instant project”) on May 20, 2009.

Luxembourg entrusted the purification work of the above contaminated soil (hereinafter “instant purification work”), which is the executor of the instant project, to the dlimb project financial investment company (hereinafter “dlimb”), and the dlimb started the purification work of this case after subcontracting the purification work of the instant contaminated soil to Samsung Water Industry Co., Ltd., KS Construction Co., Ltd., Ltd., SS-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S

(1) On March 7, 2012, Plaintiff 1’s representative at the construction site of the instant case, Plaintiff 2 is the field agent at Esculco Co., Ltd. at the construction site of the instant case. On March 7, 2012, the Plaintiffs issued a certificate of completion of report to the Defendant on each of the above temporary buildings to the Defendant, including a washing treatment site, a waste sorting site, a wastewater treatment site, a waste treatment site, a waste treatment site, and a waste treatment site, and a temporary building (the period until May 31, 2013) (the Plaintiff 2 is three buildings (the building area of 28,930 square meters), Plaintiff 1’s temporary building (the building area of 1,728 square meters), and each of the above temporary buildings (the “each of the instant temporary buildings”) for the construction period of Yongsan-gu, Yongsan-gu, Seoul (the “instant land”). On March 31, 2015 each of the instant temporary buildings).

B. Removal order following the expiration of the retention period of each of the instant temporary buildings

(1) As Samsung C&T consortium did not receive the instant purification cost from the dlimb, around September 3, 2012, the instant purification work was suspended. The Defendant notified the Plaintiffs of the termination of each of the retention period of the instant temporary building and the extension report upon the expiration of the retention period on June 3, 2013.

B. The Defendant ordered the removal of each of the instant temporary buildings until July 31, 2013 (hereinafter “instant removal order”) to the Plaintiffs on July 31, 2013, when the Plaintiffs did not report the extension thereof.

Secondly, on July 5, 2013, the Plaintiffs filed an application for the extension of the retention period of each of the instant temporary buildings (hereinafter “instant first extension application”). However, the Defendant requested the Korea Land Corporation and the Korea Land Trust Corporation, a co-owner of the instant land, to supplement the written consent to the land use of the land, and the Plaintiffs refused to issue the written consent to the land use, and the Korea Land Corporation and Korea Land Trust Corporation were withdrawn from the said application on July 17, 2013.

Applicant on August 5, 2013, the Defendant again ordered the Plaintiffs to remove each of the instant temporary buildings by August 25, 2013 (hereinafter “instant order of removal”).

(v) The Defendant, on August 26, 2013, ordered the Plaintiffs to remove each of the instant temporary buildings until September 10, 2013, and notified the Plaintiffs of the scheduled imposition of enforcement fines (the scheduled imposition date, September 11, 2013, Plaintiff 16, 11, 870, Plaintiff 2274, 461, 260, and KRW 3rd removal order) if the Plaintiffs did not remove each of the instant temporary buildings within the said period (hereinafter “instant third removal order”).

C. Disposition of rejecting reports on extension of retention period of each temporary building of this case

(1) On August 30, 2013, the Plaintiffs submitted to the Defendant a new report on the extension of the retention period of each of the instant temporary buildings to the Defendant on August 30, 2013, along with a written consent to the use of the land in the dlimb, the right holder of the instant land (hereinafter “instant second extension application”). However, the Defendant returned the instant report to the Plaintiffs on the extension of retention period of each of the instant temporary buildings on the grounds that there was no consent from the owners of the remaining site except Dlimb on September 30, 2013, on the ground that there was no consent from the owners of the instant land (hereinafter “instant return disposition”).

B. At the time of the second application for the extension of the instant land, the Korea Railroad Corporation held 85,911.4/97,406.2 shares of the instant land; the Korea Railroad Corporation held 6,125.3/97,406.2 shares of the instant land; and the Korea Land Trust Corporation held 5,369.5/97,406.2 shares of the instant land. Moreover, the Korea Land Trust Corporation held the right to repurchase of each of the instant land owned by the Korea Land Trust Corporation after filing for the registration of the establishment of the right to repurchase of each of the instant land. On April 19, 2013, the Korea Railroad Corporation made a provisional registration of the prohibition of disposal of each of the instant land by taking the right to claim the cancellation of the ownership transfer registration due to the cancellation of the sales contract as the Seoul Central District Court Decision 2013Kahap850 on April 19, 2013.

D. Imposition of charges for compelling compliance by the defendant

On October 1, 2013, the Defendant issued a disposition imposing KRW 16,11,870 for non-performance penalty and KRW 274,461,260 for non-performance penalty against Plaintiff 1 on the ground that the Plaintiffs did not remove each of the instant temporary buildings, the retention period of which expires (hereinafter “instant disposition imposing non-performance penalty”).

【Ground of recognition】 The fact that there has been no dispute, Gap 1 through 16, Eul 1 through 4 (including each number), the purport of the whole pleadings

2. The plaintiffs' assertion

A. Illegality of the instant return disposition

(1) Article 13(1) of the Enforcement Rule of the Building Act only stipulates that a temporary building should be submitted to the report accompanied by a written consent of the owner of the site. Thus, if a temporary building is constructed and its retention period is extended in a state where it is already constructed, the rejection disposition of this case on the ground that the consent of the owner of the site is not required

Even if it is necessary at the time of extension of the retention period of the Do governor's temporary building, the matters concerning the management of the jointly owned property can be decided independently by the co-owners of the majority share, so it is sufficient to obtain the consent of the majority equity right holder. Although the plaintiff reported the extension of retention period of each temporary building of this case to the Korea Railroad Corporation which is the majority equity right holder of the land of this case and the Korea Land Trust Corporation which is the remaining minority equity right holder, the return of this case is unlawful.

B. The illegality of each disposition of this case following each removal order of this case

(1) The Plaintiff issued the second removal order on July 5, 201, on the premise that each of the instant removal orders is lawful. The Plaintiffs filed an application for the first extension of the instant order, along with the written consent to the land use of the dlimb, around July 5, 2013, after the Defendant issued the first removal order. However, the Defendant issued the second removal order on the ground that the Korea Railroad Corporation that is a minority equity right holder and the Korea Land Trust Corporation did not consent to the use of the land, and issued the second removal order. As alleged earlier, the report on the extension of the retention period of temporary buildings does not require the consent of the site owner, or even if the consent to the use of the house is necessary, each of the removal orders on the ground that the consent of the majority equity right holder is not sufficient, and its defect is serious and clear. Accordingly, each of the instant removal orders is unlawful, and it is also unlawful.

D. Each of the dispositions of this case is unlawful, since each of the dispositions of this case was succeeded to the disposition of this case and the disposition of imposition of the enforcement fine of this case, or it was improper to recognize the binding force of each of the orders of this case in excess of the plaintiffs' tolerance limit, even though the above defects of the orders of this case were serious and clear, and thus, constitute grounds for revocation not being void.

Article 22(1) of the Civil Act provides that the order of removal of each of the instant units of temporary building is valid, and each of the instant units of temporary building shall be subject to the disposition of removal, and each of the instant units of temporary building shall be subject to the disposition of removal, and each of the instant units of temporary building shall be subject to the disposition of removal, and each of the instant units of temporary building shall be subject to the disposition of removal, and each of the instant units of temporary building shall be subject to the disposition of removal, and each of the instant units of temporary building shall be subject to the disposition of removal.

(c) The assertion of deviation and abuse of discretionary authority;

Even if the order of removal of this case is lawful upon the extension of the retention period of a family temporary building, the plaintiffs and Samsung C&T consortium had legitimate authority to occupy the land of this case as lien holder due to the suspension of the purification work of this case, and the Korea Railroad Corporation seriously contaminated the land of this case. Although the project of this case was not paid properly, it is unreasonable to remove each temporary building of this case because it did not consent to the extension of the retention period of each temporary building of this case. Each temporary building of this case is an essential facility for the purification work of this case, and it is still necessary for the purification work of this case, and the removal of each temporary building of this case is not completed, so if each temporary building of this case is demolished, the Korea Railroad Corporation should re-establish a temporary building for the purification work of this case. The plaintiffs are socially and economically lost, and the plaintiffs were unable to receive the construction cost of this case, but the removal of each temporary building of this case was installed with the amount equivalent to 40 billion won, and it is hard to say that each of the new buildings of this case is detrimental to the general traffic or other public.

3. Relevant statutes;

The entries in the attached statutes are as follows.

4. Judgment on the defendant's main defense

Since the Defendant issued the first removal order to the Plaintiffs on July 3, 2013, and notified it, the Plaintiffs, at least on July 5, 2013, should have been aware of the first removal order, which was the time when the first extension of the first extension of the first extension of the instant application, but the part of the claim for revocation of the return of the instant case, which was filed after the lapse of 90 days therefrom, is unlawful as it exceeds the filing period. However, the return order of the instant case and the first removal order of the instant case, which was filed by the Defendant against the Plaintiffs on September 30, 2013, are separate dispositions. The Plaintiffs filed the instant lawsuit on September 30, 2013, which was 90 days before the date when the return of the instant case was notified, and thus, the claim for revocation of the return of the instant case was complied with. Therefore, the Defendant’s defense is without merit.

5. Determination on the legitimacy of each of the dispositions of this case

A. Judgment on the disposition on the return of this case

(i) Whether a temporary building owner's consent to use is required when its retention period is extended;

Article 20(2) of the Building Act provides that the Mayor, etc. shall file a report in order to build a temporary building for the purposes prescribed by Presidential Decree, and Article 15(5) of the Enforcement Decree of the Building Act lists a temporary building subject to reporting under each subparagraph. In principle, a temporary building is not a building under the Building Act, and it can be constructed without a building permit or a building report, but it is necessary to control a certain temporary building equivalent to that of a building (see Supreme Court Decision 2010Du9334, Sept. 9, 201).

Article 13(1) of the Enforcement Rule of the Building Act provides that a person who intends to build a temporary building subject to a report pursuant to Article 20(2) of the Act shall submit a written report on the construction of a temporary building in attached Form 8 to the Governor of a Special Self-Governing Province or the head of a Si/Gun/Gu along with the layout drawing, floor plan, and written consent to use the site (limited to a site owned by another person) pursuant to Article 15(8) of the Decree, and Article 13(5) of the Enforcement Rule of the Building Act provides that a person who intends to extend the retention period of a temporary building pursuant to Article 15(7) of the Decree shall submit a written report on

As seen earlier, Article 13(1) of the Enforcement Rule of the Building Act provides that a person who intends to build a temporary building shall submit a report on the construction of a temporary building along with a written consent on the use of the site. A person who intends to build a temporary building on land owned by another person must naturally obtain consent from the owner of the site; ② the extension of the retention period of a temporary building on land owned by another person must have the same right to use the land as that of the construction; ③ Article 13(5) of the Enforcement Rule of the Building Act does not provide a written consent on the use of the site at the time of the report on the extension of the retention period of the temporary building. However, Article 13(5) of the Enforcement Rule of the Building Act does not stipulate a written consent on the use of the site when the report on the extension of the retention period of the temporary building is filed, but if the owner of the temporary building attaches a written consent on the use of the site that is not limited to the original use period, the administrative agency must separately confirm whether the user of the temporary building has the right to use period exceeding the original use period.

Whether it is possible to approve the use of land by a majority of right holders

Matters related to the management of common property may be decided by a majority of shares, and the detailed method for co-owners to use and profit from the common property is related to the management of common property. However, the contents of use and profit should not lead to a change in the existing form of the common property, which is not a "disposition" or "change", which is not a "management". For example, it would be beyond the scope of "management" (see Supreme Court Decision 2000Da33638, 3645, Nov. 27, 2001). Thus, it is necessary for the land owner to use the land of this case to construct each of the construction of the building of this case on the land of this case and extend it again after the retention period has expired, not just the management of the common property, but also it is close to a "disposition" or "change" that causes a fundamental change in the existing form of the land of this case during the retention period. Therefore, the plaintiffs' assertion to consent is without merit.

B. Determination of illegality regarding each removal order of this case

(1) Determination of illegality of each order of removal

From the expiration of the retention period of each of the instant temporary buildings, each of the instant temporary buildings is illegal buildings. The Defendant notified the Plaintiffs to report the extension of the retention period of each of the instant temporary buildings, but did not report the extension period by the Plaintiffs, and issued the instant order of removal as the Plaintiffs did not remove each of the instant temporary buildings by the deadline for correction, and issued the instant order of removal as the Plaintiffs failed to comply with the order of removal thereafter. As seen earlier, each of the instant order of removal issued on the ground of the expiration of the retention period of each of the instant temporary buildings is lawful, and therefore, each of the instant orders of removal issued on the ground of the expiration of the retention period of each of the instant temporary buildings is lawful, and therefore, the instant order of removal was issued on the premise that each of the instant orders of removal is unlawful.

D. Determination on the termination of the removal order of each of the instant cases

The plaintiffs filed a report on the extension of the retention period of each of the instant temporary buildings on August 30, 2013. However, in full view of the purport of the construction report system as seen earlier, the temporary buildings under Article 20(2) of the Building Act and Article 15(5) of the Enforcement Decree of the Building Act are to be used for a limited period of time. In light of the purpose of the construction report system, the administrative agency may not accept the report where it is judged that the temporary buildings will be used for a considerable period of time beyond the retention period originally reported through the extension of retention period, and the report on the extension of retention period may not be accepted if the temporary buildings whose retention period expires are not used for the original reported purpose. As such, the report on the extension of retention period of the temporary building is deemed to require acceptance, and thus, it cannot be deemed that the illegal state was resolved merely by the act of reporting the extension of retention period, and thus, the defendant rejected each of the instant construction report on the extension of retention period for a certain period of time on the ground that no consent of all the site owners is acceptable.

C. Determination on the deviation and abuse of discretionary power

The above facts and arguments revealed as follows. ① Since the suspension of the purification work of this case on September 3, 2012, each temporary building of this case was not used for the purification work until August 30, 2013, which was the second extension of the construction work of this case. ② The Korea Railroad Corporation concluded the project agreement with the Dlimb and sold the land of this case with the repurchase right special agreement with the Dlimb under the contract of the purification work of this case. The dlimb did not raise project funds and the above construction was suspended, the contract and project agreement for the land of this case were cancelled on April 8, 2013, and the plaintiffs were not subject to provisional disposition for the removal of dlimb shares among the land of this case. ③ Since the Korea Railroad Corporation was not subject to the order of this case until the cancellation of the sale contract for the land of this case, it would be difficult for the plaintiffs to be subject to the order of this case to suspend the purification work of this case and the order of this case.

6. Conclusion

Therefore, the plaintiffs' claims are dismissed in entirety as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Jeong Jin-jin (Presiding Judge)

1) The instant land was owned by the Korea Railroad Corporation divided by Han River-ro 3 on February 22, 2008 at 40-1, but the Korea Railroad Corporation sold the instant land to Dlimb on November 30, 2009 with a special agreement to repurchase each share, and completed each registration of ownership transfer after completing the registration of ownership transfer on November 29, 2010 of Dlimb. The instant land was jointly owned by the Korea Land Trust Corporation with Dlimb and Korea Land Trust Corporation at the time of application for the construction of each temporary building, and each of the instant land was jointly owned by Dlimb and Korea Land Trust Corporation.