[1] Whether an appeal against a favorable judgment is permitted (negative)

[2] Details of official duties where the State or a local government is liable for damages due to a public official’s breach of official duties and the standard for determining proximate causal relation

[3] Whether approval of a design is illegal solely on the ground that the construction was carried out ex post facto after the construction of design documents, etc. was carried out (negative)

[4] Whether a permitting agency may refuse the completion of a building constructed according to the building permit (negative)

[5] The case holding that there is no proximate causal relation between the collapse accident of Samung Pung department department and the violation of the duties of public officials belonging to Seocho-gu Office

[1] An appeal against a favorable judgment cannot be permitted as an appeal against a favorable judgment, which is intended to seek revocation or alteration of a favorable judgment against a person himself/herself.

[2] As long as the content of official duties imposed on a public official is not merely for the public interest or for the purpose of regulating the internal order of an administrative agency, but entirely or incidentally established to protect the safety and interests of an individual member of society, the State or a local government to which a public official belongs is liable to compensate for the damage inflicted on a victim by violating such official duties to the extent that the proximate causal relation is acknowledged. In determining the existence of proximate causal relation, the determination of the existence of such proximate causal relation should comprehensively take into account not only the probability of the occurrence of results, but also the purpose of the code of conduct imposing official

[3] In the event that a construction is not contrary to the substantive laws and regulations regarding the construction, if the construction does not conflict with the design documents and drawings, etc., it may correct the unlawful state in which the design documents and construction conditions are inconsistent with the design documents and construction conditions by obtaining permission for design modification in accordance with the design documents and drawings. Thus, if an application for design modification is filed, the administrative agency cannot reject the application solely on the ground that it is ex post

[4] Inspection of completion is conducted to verify whether a building constructed upon obtaining a building permit is appropriate for the purpose of construction administration, and to issue a certificate of completion inspection, so the permission-granting agency may not refuse the completion inspection if the building is constructed in accordance with the building permit.

[5] The case holding that there is no proximate causal relation between the collapse accident of Samung Pung department department and the violation of the duties of public officials belonging to Seocho-gu Office

[1] Articles 360 and 392 of the Civil Procedure Act / [2] Article 750 of the Civil Act, Article 2 of the State Compensation Act / [3] Article 5 (4) (see the current Article 10) of the former Building Act (amended by Act No. 4381 of May 31, 1991) / [4] Article 7 (see the current Article 18) of the former Building Act (amended by Act No. 4381 of May 31, 1991) / [5] Article 750 of the Civil Act, Article 2 of the State Compensation Act, Article 1 (see the current Article 1), Article 7-2 of the former Building Act (amended by Act No. 4381 of May 31, 1991), Article 1 (3) of the former Building Act (amended by Act No. 4381 of May 31, 199), Article 31 (2) of the former Building Act (amended by Presidential Decree No. 197(14) of the former Building Act) / [see the current Article 97(1) of the Act)

[1] Supreme Court Decision 94Da21207 delivered on Nov. 4, 1994 (Gong1994Ha, 3233), Supreme Court Decision 96Da38612 delivered on May 23, 1997 (Gong1997Ha, 1859), Supreme Court Decision 96Da1276 delivered on Oct. 24, 1997 (Gong197Ha, 3571), Supreme Court Decision 98Du191915 delivered on Nov. 10, 1998 (Gong1998Ha, 287) / [2] Supreme Court Decision 91Da43469 delivered on Feb. 12, 1993 (Gong1993, 1959) 96Da397989 delivered on Nov. 29, 197 (Gong19497Da98997 delivered on Sept. 29, 197)

Hanbio Ma

Seocho-gu Seoul Metropolitan Government (Attorney Go Young-deok et al., Counsel for the defendant-appellant)

Seoul High Court Decision 97Na32644 delivered on May 22, 1998

The judgment of the court below shall be reversed. The defendant's appeal against Lee Jong-young (Seoul High-gu 426 Hyundai Apartment 106, 103, 103, Dong-dong, Gangnam-gu, Seoul), is dismissed. The remaining part of the judgment of the court below excluding the above Lee Jong-su is remanded to the Seoul High Court. The above Lee Jong-su and the costs of appeal and appeal between the defendant

1. Ex officio determination

According to the records, in the first instance court's claim for damages against the defendant of Lee Jong-young (166 of the original decision's list of the designated parties), the claim for the above Lee Jong-young was all dismissed, but when the plaintiff's claim for damages was fully or partially accepted by the court of first instance other than the above Lee Jong-young, the defendant expressed that the above Lee Jong-young was an appellant when the defendant filed an appeal against the judgment of the first instance. The court below ruled on the claim for the above Lee Jong-young (excluding 16 persons who submitted the written withdrawal of the lawsuit after the decision of the court of first instance among the plaintiffs of the first instance, 722 persons including the above Lee Jong-young was selected as the designated parties of September 4, 197 when the lawsuit was pending in the court of first instance, and it can be known that the defendant dismissed the defendant's appeal in accordance with the principle of prohibition of disadvantageous change

An appeal is to seek revocation or change in favor of himself/herself in relation to a judgment unfavorable to him/her (see, e.g., Supreme Court Decisions 94Da21207, Nov. 4, 1994; 98Du11915, Nov. 10, 1998; 98Du11915, Nov. 10, 1998). Since a claim against the above-mentioned beneficiary against the defendant is all dismissed at the first instance court, there is no benefit in filing an appeal against the above-mentioned beneficiary from the first instance court, the defendant must have dismissed the appeal against the above-mentioned beneficiary (However, the first instance court ordered the defendant to bear the litigation costs between the above-mentioned beneficiary and the defendant, even though the court below ordered the defendant to pay the litigation costs, and there is no difference in the court below's rejection of this part of the appeal by the defendant).

Nevertheless, the lower court did not err by entering the merits and rendering a judgment dismissing an appeal, and therefore, this part of the lower judgment cannot be reversed without further proceeding to determine the grounds of appeal.

2. Judgment on the grounds of appeal

The defendant's grounds of appeal Nos. 1, 2, and 3 are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

A. The judgment of the court below on the violation of duty

The court below found the following facts and made decisions on the violation of the duty of the public officials belonging to the Gu, and each of the following public officials was given a bribe upon the request of the representative director, non-party 1, non-party 2, etc. in relation to his duties.

(i)an illegality in the approval of design change and provisional use;

The head of the Gu, non-party 3, non-party 4, and non-party 5, etc. were in charge of non-party 1 and non-party 2's approval of the business plan for the third-party 2's housing and non-party 1 and non-party 2's housing construction plan on November 1, 1989, with the approval of the alteration of the business plan for the third-party 2's building (design) and approval of provisional use on the first 71,136.01's size on the 73,205.12's size on the 90's size, and thereafter, the construction work continues to be conducted within 90% of the total size on the 190's size on the 190's size on the 190's size on the 190's size on the 197's size on the 190's size on the 190's size on the 190's size on the 19's size on the 16's size.

However, according to Article 7-2 of the former Building Act (wholly amended by Act No. 4381 of May 31, 1991; hereinafter the same "former Building Act") and Article 11(1) and (5) of the Enforcement Decree of the same Act, when a short-term construction reaches 50% of the total construction, an application for interim inspection shall be filed with the head of a Si/Gun under the conditions as prescribed by the Ordinance of the Ministry of Construction and Transportation, and the construction of major structures may not continue until the completion of the interim inspection. While the short-term construction at the time of the completion of the interim inspection reaches 70% of the total construction, it is necessary not to approve the change of the construction unless it voluntarily revises the violation after finishing the short-term construction at the time of the completion of the interim inspection, and it is necessary not to perform the construction work at the time of 190 square meters prior to the completion of the construction order or the construction of 194 square meters prior to the completion of the construction work.

(2) Illegal in approving completion inspection

The non-party 6 of the Gu and the non-party 7 of the housing and building engineer report received a meeting from the Seoul Special Metropolitan City Mayor to complete the construction of traffic facilities, such as the installation of signal lights, after consultation with the project supervisor, and the head of the Gu's report on feasibility review of the installation of the stopping place, which is difficult to make judgment due to the lack of submission of a report on feasibility review. Accordingly, the completion inspection shall be completed after the completion inspection after the completion of the consultation, which is supplemented, and the completion inspection shall be conducted after the completion inspection without the approval of the deputy head of the Gu and the head of the Gu, and the above non-party 6 issued the certificate of completion inspection on July 27, 190 without the interim approval of the non-party 8 newly appointed as the head of the City Maintenance Bureau. The above non-party 6 completed the completion inspection

However, the Samung Construction applied for a completion inspection on May 8, 190, but it was returned on the ground that some of the conditions in the traffic impact assessment were not fulfilled, environmental sculptures, and the interior works of the building were not completed, and as seen earlier, the agreement was not completed on July 5, 1990. However, as seen earlier, the agreement was not completed, and the residents filed a strong civil petition against the noise and dust, and the residents filed a strong opposition against the noise and dust, and the residents were driving down to the Gu office and demonstration, and the defendant's old side used a smooth compromise with the residents, so the above non-party 1 was not corrected, and thus, the completion inspection should not be approved.

(3) Other illegal acts

On October 23, 1994, the director general of the Urban Improvement Bureau, non-party 9, non-party 10, non-party 11, housing owner, and non-party 12, etc. have applied for each application for approval for the change of use of the contents of which facilities are changed from 23,625.01m2 to 42,878.03m2 from 23,625m2 to 23,625.01m2, respectively, and applied for the issuance of the certificate of completion of building use inspection again submitted on October 7, 1994.

B. The judgment of the court below on causation

Based on the above facts and determination, the lower court determined that the aforementioned public officials’ design change approval, approval for temporary use, approval for completion inspection, etc. is a series of acts necessary in the construction process of the building of the Pung department store which is a large-scale distribution facility, and the tort of the above public officials is not a direct cause of collapse. However, in the background of defective construction of the Pung department store, the above non-party 1 et al. started construction with the intent of a small scale project plan without any comprehensive and systematic construction plan and constructed a building without any permission in line with the purpose of the department store without any comprehensive and systematic construction plan, and there were circumstances where some of the illegal use was altered without permission in order to make it legal, and even if the above public officials knew of the above facts, they should cooperate with the above non-party 1, etc., even if they were well aware of it, and assist the construction of the building at any time, such as construction without any reasonable distance between the construction and construction plan and the total construction of the building at any time.

C. The judgment of this Court

Inasmuch as the content of a public official’s duty imposed on a public official is not merely for the public interest or for the purpose of regulating the internal order of an administrative agency, but entirely or incidentally for the protection of the safety and interests of individuals from society members, the State or a local government to which the public official belongs shall be liable to compensate for the damage suffered by the victim due to the public official’s breach of such duty to the extent that proximate causal relation is acknowledged. In determining the existence of proximate causal relation, a comprehensive consideration should be given to the probability of the occurrence of a result, as well as to the purpose of a code of conduct imposing an official duty, the mode of harmful act, and the degree of damage (see, e.g., Supreme Court Decisions 91Da43466, Feb. 12, 1993; 97Da36613, May

Article 1 of the former Building Act provides that "the purpose of this Act is to promote public welfare by prescribing the standards for the promotion of public welfare, and each provision of the former Building Act provides that "the purpose of this Act is to promote public welfare by prescribing the standards for the promotion of public welfare." Since the provisions of the former Building Act basically establish the standards for the promotion of public welfare and regulate them within a certain period, public officials in charge of the duties under the Building Act, in principle, perform official duties for the public interest. However, there may be cases where acts violating the Building Act and subordinate statutes violate the safety and interests of individuals such as collapse of buildings and other safety accidents, and there may be various restrictions, regulations or standards prescribed by the Building Act and subordinate statutes, in particular, construction permission, completion inspection, excavation of land, structural proof, and construction materials, etc.

Even so, it is difficult to understand the judgment of the court below that there is a proximate causal relation between the above public official's violation of duty and the collapse accident of this case.

(4) The reason for the collapse of the store posts recognized by the court below was that the non-party 1 did not directly destroy the 5th floor of the store posts, and the non-party 1 did not change the use of the 5th floor to the 5th floor posts, and the non-party 5th floor spaces were constructed, and the non-party 1 building built around the 5th floor posts were reinforced with the 4th floor boards, and the lower court did not change the use of the 5th floor to the 5th floor posts by the 5th floor size and the 5th floor size and the 5th floor size and the 5th floor size and the 5th floor size and the 5th floor size and the 5th floor size and the 5th floor size and the 5th floor size and the 5th floor size and the 1st floor size and the 5th floor size of the new 20th floor structure and the 5th floor size and the 5th floor size and the 3th floor plan were not prepared by the new 20th floor plan.

However, the main part of the defendant's act of violating the duty of the former public officials, which was recognized by the court below, is summarized as follows: ① the construction continues without obtaining an interim inspection; ② the construction change and the approval for the first provisional use without obtaining an accusation despite the extension of 2,069m2 without obtaining an interim inspection; ② the area of approval for the second provisional use increases 12,859m2 compared with the approval for the first provisional use; ③ the approval for the second provisional use retroactively approved 14 days; ③ the approval for the completion inspection even if the consultation with the relevant agencies was not completed; ③ the approval for the first provisional use is approved for the completion inspection; ③ the securing of speed lines without obtaining an access warning, etc. for the first provisional use; the problems such as the failure to install an underground parking lot; the issue of signal lights, the failure to install bus stops; and the filing of a civil petition, etc. is not related to the second provisional construction accident; and the part of the judgment of the court below, which was acknowledged as unlawful by the public officials during the process of the inspection and supervision of the first provisional use.

First, even if construction is not in conflict with the substantive laws and regulations regarding the design change and approval for the first provisional use of the design around November 1989, if construction does not conflict with the design drawing and the construction condition, it may be corrected by obtaining design change permission in line with the design drawing and the construction condition. Thus, if an application for design change approval is filed, the administrative agency can not refuse it solely on the ground that it is an ex post facto application after the execution of the construction (see Supreme Court Decision 93Nu23480, Jun. 24, 1994). Thus, it cannot be deemed unlawful solely on the ground that the approval was made after the completion of the design change. However, even if the time to undergo the interim inspection has expired, it is clear that the construction continues without undergoing the interim inspection is illegal, and if the illegal state remains without undergoing the interim inspection in light of the provisions of Article 10(3) of the Enforcement Decree of the Building Act, it shall not be approved for the provisional use. Therefore, an act of violating the laws and regulations.

However, the Sampung Construction applied for interim inspection on December 19, 1989, which was 19 days after the approval of the above provisional use, and since the collapse accident in this case far exceeds the above provisional use period, and it also occurs after the completion inspection, it is difficult to view that the above temporary illegal state exists a causal relation with the collapse accident in this case.

Furthermore, the interim inspection under Article 7-2 of the former Building Act (the current Building Act repealed the interim inspection system under the Building Act) is conducted in compliance with the provisions of the Building Act, i.e., whether the construction is being conducted in compliance with the permitted design drawings, and it is confirmed as the land. Therefore, it cannot be expected that the error of design and construction, which directly caused the collapse accident of this case, can be pointed out.

Next, as the approval for temporary use was newly obtained with respect to the approval for temporary use on March 14, 1990 for the second time, the approval area of 12,859 square meters increased compared to the approval for the first temporary use, it would be an illegal act because it played a role of integrating the previous illegal use on February 28, 1990. However, the illegal state of the portion increased at the time of the second provisional use approval was temporarily existed between February 28, 199 and March 13, 190, and it would not be an illegal act that retroactively applies to the above temporary use approval period, and it would not cause any collapse and related to the collapse of this case.

Finally, the completion inspection is examined as to the completion inspection, and the completion inspection is conducted after confirming whether the building constructed with a building permit conforms to the purpose of the construction administration, and the certificate of completion inspection is issued, so the permission-granting agency cannot refuse the completion when the construction is completed in accordance with the building permit (see, e.g., Supreme Court Decisions 91Nu5358, Apr. 10, 1992; 98Da30285, Mar. 23, 199).

Furthermore, according to Article 8(1) of the former Enforcement Rule of the Building Act (amended by the Ordinance of the Ministry of Construction and Transportation No. 504 of June 1, 1992), Article 8(3) of the same Act (amended by the Ordinance of the Ministry of Construction and Transportation) and each subparagraph of paragraph (3) of the same Article, the contents of the completion inspection are to investigate the main use of a building, subsidiary use, number of floors, floor area, size of columns, thickness of bearing walls, distance between crossing points, height of floors, height of living room height, structure (main structure, foundation, walls, walls, roof, eaves, concrete design strength), single heat, height, height, height, height, height, light area ratio, number of passenger elevators, number of direct stairs, number of emergency elevators, air conditioners, air conditioners, change type, and capacity of a building with a total floor area of at least 1,00 square meters, floor plan, floor plan, structure and purification facility of this case can not be found to have any direct ground for the completion inspection of construction, structure and purification of sewage.

Of course, according to Article 33-2 (3) of the former Housing Construction Promotion Act (amended by Act No. 4723 of Jan. 7, 1994), an institution which conducts a completion inspection is required to hear the opinion of the head of the relevant institution in advance. The defendant, the Seoul Special Metropolitan City and Seoul Local Police Agency, after hearing the opinions of the Seoul Special Metropolitan City, issued a certificate of completion inspection, disregarding the issue of the installation of signal lights and stops on the side of Seoul Special Metropolitan City, and issuing the certificate of completion inspection. Thus, this part may be a problem. However, since the construction of signal lights and stops is irrelevant to the building itself, these defects are merely procedural, and they cannot be related to the substance of the construction laws and regulations, and

On the other hand, there is no obligation for the public officials under the Building Act to conduct the occasional inspection, and even if they conducted the occasional inspection for household affairs, it is not expected that they can be discovered by confirming whether they were wrong construction.

Ultimately, the causes of the collapse accident of this case conflict with those of the building owner in an unscheduled construction, designer’s defective design, fault in the structural calculation of a professional structural engineer, defect construction by a contractor, and management and maintenance of the owner. Under the Building Act, it is difficult to recognize the possibility of the collapse accident of this case due to the Defendant’s violation of the duty as seen earlier by the former public officials because it is difficult to recognize the probability of the occurrence of the collapse accident of this case due to the Defendant’s violation of the duty as seen earlier, and even if the said public officials were to receive a bribe in the course of performing their duties, if they were to take advantage of only the violation of the duty to perform their duties, the degree of the violation of the duty to perform their duties, and immediately eliminating the illegal situation, even if they were to have harshly caused many consequences of the collapse accident of this case, there is no proximate causal relation between the above public officials’ violation of the duty to perform their duties and the

Therefore, the judgment of the court below which recognized that the above public officials' above official's unlawful act was in proximate causal relation between the collapse accident of this case, and further, the defendant is also liable for damages suffered by the plaintiff and the designated parties, is erroneous in the misapprehension of legal principles as to the duty of the public officials under the Building Act and the proximate causal relation under the State Compensation Act, which affected the conclusion of the judgment, and the allegation in the grounds of appeal

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal by the defendant, the judgment of the court below shall be reversed, and the part concerning the above objection shall be decided directly pursuant to Article 407 subparagraph 1 of the Civil Procedure Act, and the appeal against the above objection shall be dismissed. This part of the appeal and the costs of appeal shall be borne by the defendant. The remainder except the part concerning the objection to the above objection shall be 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

Justices Seo Sung-sung (Presiding Justice)