Plaintiff (Law Firm H&K, Attorneys Kang Chang-ok et al., Counsel for plaintiff-appellant)

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

June 20, 2012

Busan District Court Decision 201Guhap3488 Decided December 22, 2011

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The imposition of enforcement fines of KRW 50,000,000 against the Plaintiff on December 29, 2010 shall be revoked.

2. Purport of appeal

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff is the owner of Gangseo-gu, Busan ( Address 1 omitted) Gangseo-gu, Busan (hereinafter “instant land”).

B. On October 18, 2010, the Defendant sent to the Plaintiff a document regarding corrective orders and pre-announcement of imposition of charges for compelling compliance on the ground that the Plaintiff violated Article 12 of the Act on Special Measures for Designation and Management of Development Restriction Zones (hereinafter “Act on Special Measures for Designation and Management of Development Restriction Zones”).

C. However, as the Plaintiff did not correct it, on December 29, 2010, the Plaintiff imposed a charge for compelling the performance under Article 30-2 of the Development Restriction Zone Act on KRW 50,000,000 (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, Eul evidence Nos. 1 and 2 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) In order to implement the instant disposition, the Defendant issued a corrective order with a reasonable period for restoration to its original state set to the Plaintiffs, and the instant disposition may be conducted after giving prior written notice to the effect that if the corrective order is not made within the corrective period, the enforcement fine is expected to be imposed. However, the Defendant sent a document to the Plaintiff one time to restore the construction of illegal buildings and the change in the form and quality of land to its original state. Thus, the instant disposition is unlawful

2) According to Article 41-2(2) of the Enforcement Decree of the Development Restriction Zone Act, “The imposition of a non-performance penalty may be postponed or the amount of a non-performance penalty may not be aggravated until the transfer is possible, considering the timing of occupancy, etc. against a person subject to a non-performance penalty who transfers it to an area subject to release under Article 4(4) of the Development Restriction Zone Act.” The Plaintiff constitutes a person who transfers it to an area subject to release under the above provision, and thus, the Defendant did not delay the imposition

3) The Plaintiff was disadvantaged due to the designation of the instant land as a development-restricted zone, and the alteration of the form and quality of the instant land and the construction of a building were all inevitable acts for maintaining livelihood, and the building constructed on the instant land was removed on or around May 201, which was after the instant disposition was taken. Considering that the enforcement fine for the instant disposition was excessively unlawful.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

(c) Fact of recognition;

1) After acquiring the ownership of the instant land on January 6, 1978, the Plaintiff leased the instant land to the tenants on or around March 2000, and the tenants constructed a building on the instant land and used the instant land as a place for manufacturing and storing heavy trucks.

2) On April 28, 2000, the Defendant sent the following documents to the Plaintiff under the title “an order to restore the illegal act within a development-restricted zone to its original state,” and the Plaintiff was served the said documents around that time.

A. L. L. L.I.

1. The thickness is the time to restore the following acts in violation of the provisions of Article 21 of the Urban Planning Act within a development-restricted zone to its original state voluntarily until May 9, 200:

2. It is known that, if not restored to the original state within this period, it would be at a disadvantage, such as accusation and charge for compelling compliance, in accordance with the relevant laws.

○ Contents of tort

In the case of an actor (owner) of the land category of the illegal act, the category of the illegal act, the date of the illegal act, the size of the structural use ( Address 2 omitted). (No. 3 omitted) The Plaintiff’s response 1,899 shape and quality change of the automobile, etc. 200.

3) The defendant sent the above document to the plaintiff on May 10, 200 that the land of this case was not restored to its original state until May 9, 200. On May 10, 200, the defendant sent the document to the plaintiff to restore to its original state not later than May 25, 200. The plaintiff was served the document at that time.

4) As enforcement of the Development Restriction Zone Act, enforcement of the Act on the Protection of Development Restriction, the enforcement fine for illegal character change was newly established and the rate thereof also increases considerably, the Defendant promoted the revised matters prior to the enforcement date ( February 7, 2010), provided that the information was sent, posted on the Gu website, and provided publicity at the time of the organization and meeting of head of Tong, and sent the notice to

5) On October 18, 2010, the Defendant sent the following documents to the Plaintiff under the title of “the corrective order and the pre-announcement of imposition of the charge for compelling the performance on a regular basis” (GB). The Plaintiff was served on October 21, 2010.

1. The thickness of 1. A table which is included in the main text has not been implemented until now after being notified of corrective measures or implementation measures regarding illegal acts in violation of the provisions of Article 12 of the Development Restriction Zone Act. Thus, it is anticipated that enforcement fines should be imposed in 2010 pursuant to the provisions of Article 30-2 of the Development Restriction Zone Act and Article 41-2 of the Enforcement Decree of the same Act. 2. The re-order for corrective measures and change of form and quality of illegal buildings and land will be restored voluntarily to the original state, and the main period will be the time after the re-order for corrective measures and change of form and quality pursuant to the provisions of Article 30-2 of the Development Restriction Zone Act. When the violation of buildings and land has been corrected or added, if the violation of the provisions of the Development Restriction Zone Act has been added, the opinion has been accurately stated in the "Presentation of Opinion" and the enforcement fines have been imposed until November 27, 2010.

[Ground of recognition] Facts without dispute, entry of evidence Nos. 1, 3, 4, 5, 6, 9 and the purport of the whole pleadings

D. Determination

1) Whether procedural requirements for imposing enforcement fines are satisfied

A) The statutory provisions and interpretation on lawful procedures for imposing charges for compelling the performance

(1) Article 30-2(1) of the Development Restriction Zone Act provides that “The head of a Si/Gun/Gu shall impose a non-performance penalty within the limit of KRW 100 million on a person who has received a corrective order pursuant to Article 30(1) and fails to comply with the corrective order within the corrective period.” In addition, Article 30-2(2) of the same Act provides that “The head of a Si/Gun/Gu shall give prior written guidance to the effect that a non-performance penalty should be imposed and collected if the person fails to comply with the corrective order within the given period prior to the imposition of a non-performance penalty under paragraph (1).

Meanwhile, Article 30(1) of the Development Restriction Zones Act provides that "the head of a Si/Gun/Gu may revoke permission where any of the following acts is discovered, and may order the relevant offender (including the owner, manager, or occupant of a building, structure, or land used for a violation; hereinafter referred to as "offender, etc.") to suspend construction, to remove, close, rebuild, or relocate the building, structure, etc. or to relocate the building, structure, or take other necessary measures (hereinafter referred to as "improvement order") for a reasonable period, and subparagraph 1 of the same Article provides that "the construction of a building, the alteration of the purpose of use of a structure, the installation of a structure, the alteration of the form and quality of land, the division of land, the storage of articles, the cutting of bamboo and trees, or the implementation of an urban planning project without permission under the proviso to Article 12(1) or Article 13 or in violation of the details of permission.

(2) A systematic interpretation of the aforementioned statutory provisions on the imposition of charges for compelling the performance may first be made in order to impose charges for compelling the construction of illegal buildings or changes to the form and quality of land without permission. ① Ordering the violator to correct the violation by setting a reasonable period pursuant to Article 30(1) of the Development Restriction Zone Act to the violator, etc.; ② Ordering the correction of the violation to the violator, etc.; ② Ordering the correction again, if the correction is not made within the given period, to the effect that the charge for compelling the performance should be imposed and collected in advance pursuant to Article 30-2(2) of the Development Restriction Zone Act if the violation is not performed within the given period, and ③ Ordering the imposition of charges for compelling the performance pursuant to Article 30-2(1) of the Development Restriction Zone Act if the violation is not performed even within

(3) Such corrective order and guidance procedures are based on health care, the purport of the enforcement fine system as set forth below, and the legal provisions of the Development Restriction Zone Act concerning the imposition of enforcement fines, and the imposition of enforcement fines are systematically interpreted. However, it is sufficient to impose enforcement fines once the enforcement fines are imposed, and it is reasonable to deem that the corrective order only once the first one is sufficient, and that it is not necessary to continue each time the enforcement fines are imposed

(A) The enforcement fine is the ultimate goal of restitution of the tort, and the ultimate objective is to continue to be imposed to the extent there is a tort (see Supreme Court Order 2005Ma30, Aug. 19, 2005). Thus, the violator is a “person who fails to comply with the corrective order” under Article 30-2(1) of the Development Restriction Act by failing to comply with the initial corrective order, and thereafter, as long as there is a tort, the violator is still “a person who fails to comply with the corrective order.” Thus, the enforcement fine can be continuously imposed on him.

Therefore, whenever a charge for compelling compliance is imposed, it cannot be deemed that the actor is “a person who fails to comply with the corrective order” in the same manner, and the actor is “a person who fails to comply with the corrective order.”

(B) Paragraph (2) of the same Article provides that "the head of a Si/Gun/Gu shall give prior written notice to the effect that a non-performance penalty should be imposed and collected if the non-performance penalty is not carried out within a reasonable period prior to the imposition of the non-performance penalty pursuant to Paragraph (1)." It does not provide that corrective order should also be issued prior to the imposition of the non-performance

(C) Paragraph (4) of the same Article provides that "the head of a Si/Gun/Gu may repeatedly impose and collect a non-performance penalty pursuant to Paragraph (1) not more than twice a year from the date on which the first corrective order was issued until the corrective order was complied with." In this context, "the corrective order" refers to "the first corrective order," so it cannot be deemed that the corrective order should continue to be issued whenever the non-performance penalty is imposed.

(D) The phrase “the first corrective order” under the above Paragraph (4) means that, after the first corrective order was issued, an administrative agency does not immediately impose a non-performance penalty or enter into the procedure of administrative vicarious execution, and again, an administrative agency may again issue a second corrective order in order to give the offender an opportunity to restore to the original state. As such, if several corrective orders were issued, it is only deemed that the provisions prepared to set the standards for imposing non-performance penalty, and the first corrective order cannot be extensively interpreted to the effect that each time the non-performance penalty is imposed.

(E) Although the administrative agency's order for dismissal whenever it imposes a non-performance penalty is intended to prevent the offender from imposing the non-performance penalty which is not able to do so, the administrative agency may impose the non-performance penalty to restore the illegal act to its original state, and may carry out the vicarious execution under the Administrative Vicarious Execution Act, it is also intended to inform the offender in advance of which disposition should be made. This function is sufficiently achieved by the dismissal, and it is not necessary to again issue a corrective order to the person who continues the illegal act because he/she fails to comply with the corrective order. Thus, the above interpretation is contrary to the administrative transparency, reliability and clarity.

B) Determination on the instant case

In light of the above legal principles, we examine whether the Defendant’s “Corrective Order” under Article 30(1) of the Development Restriction Zone Act and “Guidance” under Article 30-2(2) of the same Act was lawful before rendering the instant disposition.

(1) The nature of the defendant's document dated April 28, 2000

① On April 28, 200, the Defendant demanded the Plaintiff to restore to the original state a violation of the provisions of Article 21 of the Urban Planning Act within a development-restricted zone until May 9, 200, and at the same time inform the Plaintiff that the act may be subject to disadvantage, such as imposition of enforcement fines, if the Defendant fails to restore to the original state within the time limit. This document provides that the Defendant is identified as a tortfeasor and responsible subject of tort and correction, specify the period of correction, specify the contents of correction and specify the period of correction, and put a warning that the Plaintiff may suffer disadvantage if the correction is not made. ② Article 21 of the former Urban Planning Act (amended by Act No. 6243, Jan. 28, 200) provides that the Minister of Construction and Transportation may designate a development-restricted zone; Article 78 of the Addenda provides that the construction of buildings in violation of the purpose of the development-restricted zone and the alteration of the form and quality of land within the development-restricted zone shall not be deemed to be in violation of the Act.

(2) The defendant's document dated 18 October 2010

① Although the document was sent under the title “an order to correct and impose a regular charge for compelling compliance on 2010”, the document contains the part that “inasmuch as it did not comply with the order to take corrective measures or implementation measures until now after being notified, it shall be known that it will impose a charge for compelling compliance in 2010 pursuant to Article 30-2 of the Development Restriction Zone Act and Article 41-2 of the Enforcement Decree of the same Act,” the content of imposing a separate charge for compelling compliance is attached to the document. ② There is the part that “the second order to correct the form and quality of illegal buildings and land pursuant to Article 30-2 (Administrative Disposition against Violators of Act, etc.) of the Development Restriction Zone Act” in the document. However, for a corrective order under Article 30(1) of the same Act, the document does not specify the period of corrective measures, and it is difficult to regard “the period for submitting opinions according to the imposition of a charge for compelling compliance” as “the period for a considerable period of time” under Article 30(2) of the Development Restriction Zone Act.

(3) Sub-determination

Therefore, since the disposition of enforcement fine of this case was conducted through the corrective order under Article 30(1) of the Development Restriction Zone Act and the accusation under Article 30-2(2) of the Development Restriction Act, there is no violation of procedural law, and the plaintiff's assertion of grounds for appeal is without merit.

2) Whether a person is subject to postponement of imposition of enforcement fines

Article 42-2(2) of the Enforcement Decree of the Development Restriction Zone Act provides that the imposition of non-performance penalty may be postponed until the time of transfer to a person subject to the cancellation of a development restriction zone among those subject to imposition of non-performance penalty, considering the timing

Here, in order to become a "person who is to be transferred to a development restriction zone", it is not sufficient to transfer only with the intent to transfer it, and it must meet the minimum requirements (land sale contract, etc.) to determine whether it is possible to transfer it, and there is no evidence to recognize that the plaintiff satisfies such requirements, the plaintiff's assertion on this part is

3) Whether the charge for compelling compliance is unlawful due to an excessive charge

The purpose of designating development restriction zones is to ensure the healthy living environment for urban citizens by preventing any disorderly expansion of cities and preserving the natural environment surrounding cities. The enforcement fine under the Development Restriction Zones Act is to enforce restitution of illegal acts to ensure the effectiveness of designation of development restriction zones, taking into account the public interest purpose of securing the effectiveness of designation of development restriction zones. Considering the benefit that the Plaintiff gains by illegal acts, the enforcement fine of this case cannot be deemed unlawful because it is too excessive. Thus, the Plaintiff’

[Plaintiff asserts that the land of this case should be restored to its original state after the disposition of this case. According to the statement and image of evidence Nos. 4 and 5, the Defendant recognized that the building installed on the land of this case was removed and demolished on May 201, which was after the disposition of this case. However, Article 30-2 (5) of the Development Restriction Zone Act provides that "the head of a Si/Gun/Gu shall not impose new enforcement fines if a person subject to a corrective order under Article 30 (1) complies with the order, but shall collect enforcement fines already imposed," and Article 41-3 of the Enforcement Decree of the Development Restriction Zone Act provides a separate system that can reduce part of enforcement fines to a person meeting certain requirements, in light of the fact that there is no evidence to prove that the Plaintiff satisfied the requirements prescribed in Article 41-3 of the Enforcement Decree of the Development Restriction Zone Act, the enforcement fines of this case cannot be deemed unlawful because it is excessive].

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and since the judgment of the court of first instance is unfair with different conclusions, the defendant's appeal is accepted, and the judgment of the court of first instance is revoked, and the plaintiff's claim is dismissed as per Disposition.

[Attachment Form 5]

Judges Cho Jong-sik (Presiding Judge)