Plaintiff (Attorney Go Young-il et al., Counsel for the plaintiff-appellant)

Head of Dongdaemun-gu Seoul Metropolitan Government

March 18, 2010

Seoul Administrative Court Decision 2009Gudan792 Decided June 26, 2009

1.The judgment of the first instance shall be modified as follows:

The Defendant’s imposition of KRW 1,136,80 for non-performance penalty against the Plaintiff on December 28, 2007 and the imposition of KRW 4,035,20 for non-performance penalty on December 22, 2008 shall be revoked.

2. All costs of the lawsuit shall be borne by the defendant.

1. Purport of claim

The Defendant’s imposition of KRW 1,136,80 for non-performance penalty against the Plaintiff on December 28, 2007 and the imposition of KRW 4,035,20 for non-performance penalty on December 22, 2008 shall be revoked.

2. Purport of appeal

The purport of the appeal is as follows. It is obvious that the phrase " February 10, 2008" is a clerical error in the text of " December 28, 2007."

1. Details of the disposition;

A. On November 30, 2004, the Plaintiff obtained ownership by receiving a decision to permit the sale of the instant building in the auction procedure on the land (detailed address omitted) and 81.85 square meters of neighborhood living facilities (hereinafter “instant building”) on the land (detailed address omitted) (hereinafter “instant building”). The instant building has been used due to changes in its internal structure and purpose to residential facilities.

B. The Defendant issued a corrective order with respect to the instant building on December 5, 2006, ordering the Plaintiff to take corrective measures against the violation of the Building Act x KRW 4,771,850 on the grounds of non-compliance with the foregoing violation. On November 28, 2007, the Defendant issued a prior notice to impose a non-performance penalty (hereinafter “instant corrective order”) on the grounds of non-compliance with the foregoing violation of the Building Act x 3,789,600 won for non-performance penalty on December 28, 2007 x 463,00 won for non-performance penalty x 81.85 square meters for non-violation area x 10/100 for non-performance penalty x 200 won for non-performance penalty x 305 square meters for non-performance penalty (hereinafter “non-performance penalty x 200/100 for non-performance penalty x 308/100 on September 25, 2008.

C. On December 1, 2008, the Seoul Special Metropolitan City Administrative Appeals Commission rendered a ruling to the effect that the part exceeding 1,136,800 won of the enforcement fine of the first disposition of the instant case (463,00 won per square meter tax base x 81.85 square meter x 3/100) is revoked on the ground that “The alteration of use of the instant building is not subject to reporting, but subject to an application for alteration of entries in the building ledger, and in this case, it is reasonable to apply 3/100 as it constitutes a building in violation of this Act or an order or disposition under this Act.”

[Reasons for Recognition] 1 and 2 12, Gap evidence 3, Eul evidence 1-1 to 13, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

According to the Building Act at the time of change of the use of the building of this case, the building of this case was less than 10 square meters, and it was sufficient to apply for change of the entries in the building ledger instead of permission or report for change of purpose of use. Since the application for change of entries in the building ledger was not a requirement for change of purpose of use or a regulatory measure against the building, the building of this case cannot be deemed an unlawful building solely on the ground that the Plaintiff did not apply for change of the entries in the building ledger, and therefore, the Defendant should have issued a corrective order to the Plaintiff to change the entries in the building ledger as to the building of this case without such corrective order. Thus, it is unlawful to issue a corrective order to the effect that the building of this case should re-issue the building

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) As to the contents of each corrective order of this case

In full view of the following circumstances, the Defendant issued each of the instant corrective orders to the effect that “the instant building is a non-compliant building, the use of which was changed from the neighborhood living facilities without permission, and thus, the Plaintiff’s restoration to its original state or the report of change of use is made,” and the above corrective orders do not include the purport to apply for change of the entries in the building ledger.

① On December 5, 2006, the Defendant imposed KRW 4,771,850 on the Plaintiff a non-performance penalty on the ground that the violation of the Building Act was not corrected on December 28, 2006 on the ground that: (a) the Defendant ordered the Plaintiff to take corrective measures to demand correction of the violation of the Building Act by using the violation as “the use of the second floor neighboring the second floor (202),” and on December 28, 2006.

② At the time of prior notice of imposition of enforcement fines on November 28, 2007, the Defendant pointed out that “use of root No. 201 as a house” was a violation of the Building Act, and deemed that the instant building was “building, the use of which was changed without obtaining permission or filing a report” under subparagraph 1 of attached Table 115-2 of the Enforcement Decree of the former Building Act, and calculated enforcement fines on enforcement fines on the instant first disposition.

③ At the time of the corrective order on September 25, 2008, the Defendant pointed out that “the root No. 202 was changed to a residential environment without permission” as a violation of the Building Act, and deemed “a building, the use of which was changed without permission or report without permission” under subparagraph 1 of attached Table 115-2 of the Enforcement Decree of the Building Act, and calculated the enforcement fine on the second disposition.

④ At the time of the revision of the Building Act on November 8, 2005, the Defendant consistently maintained the position that the Plaintiff is unable to apply Article 4 (Transitional Measures for Change of Use) of the Addenda to the Building Act on the ground that the Plaintiff did not apply an application for change of the use of the instant building ledger as to the change of the use of the instant building at the time of the amendment of the Building Act.

[Reasons for Recognition] 1 and 2 12, Gap evidence 3, Eul evidence 1-1 to 13, and the purport of the whole pleadings

2) As to whether the Plaintiff is obligated to implement each corrective order of this case

In full view of the following circumstances, the Plaintiff cannot be deemed to have a duty to restore the use of the instant building to a neighborhood living facility or to report the change of use to a residential facility. Accordingly, each of the instant corrective orders issued on a different premise is unlawful.

① According to Articles 14(2) proviso and 14(4) proviso of the former Building Act (amended by Act No. 7696, Nov. 8, 2005; hereinafter “former Building Act”), and Article 14(2)7 of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 19466, May 8, 2006; hereinafter “former Enforcement Decree of the Building Act”), the building of this case is a building with a total floor area of less than 100 square meters without obtaining permission or filing a report for change of purpose of use. Accordingly, the Plaintiff, the owner of the building of this case, was obligated to apply for change of the entries in the building ledger pursuant to Article 14(4) of the former Building Act, and thus, the building of this case does not fall under the “former Enforcement Decree of the Building Act” or “former Enforcement Decree No. 158, Oct. 29, 2008.

② The proviso to Article 14(2) of the former Building Act (hereinafter “the Building Act”) deleted the proviso to Article 14(2) of the former Building Act and Article 4 of the Addenda to the Building Act (hereinafter “the former Building Act”) provides that “where an application for change of the entries in a building ledger is filed pursuant to the previous provisions and permission for change of use or report of change of use is subject to permission or report of change of use under this Act, it shall be deemed that a permission has been granted or a report of change of use has been filed pursuant to this Act,” even with the transitional provision, there is no transitional provision as to “where an application for change of the entries in a building ledger has already been made pursuant to the previous provisions, but no transitional provision exists as to “where an application for change of the entries in the building ledger has not been made,” but only the entry in the building ledger has been made lawfully pursuant to the former Building Act. However, the change of use of the building in this case, which was not made after the amendment of

C. Sub-decision

Therefore, each of the dispositions of this case on the ground that the plaintiff did not comply with the defendant's illegal corrective order is illegal.

3. Conclusion

If so, the plaintiff's claim is justified, and the judgment of the court of first instance is unfair with some different conclusions, so the plaintiff's appeal is accepted and the judgment of the court of first instance is modified as above. It is so decided as per Disposition.

Judges Lee Jae-hoon (Presiding Judge)