The case reversing the judgment of the court below that the removal of a golf practice range facility installed in violation of the Urban Planning Act and the Building Act is unlawful.

The case reversing the judgment of the court below that the removal substitute execution disposition on the facility was unlawful on the ground that the golf range facility was installed without permission in violation of the Urban Planning Act and the Building Act, and it is not possible to be legalized because it is located in the development restriction zone, and if the facility is left alone, it would endanger the smooth execution of construction administration by nullifying the authority to control the illegal building and preventing in advance the application of various restrictions stipulated in the Urban Planning Act or the Building Act from avoiding the power of the authority to prevent in advance.

Article 2 of the Administrative Vicarious Execution Act

Law Firm Taek Pung, an incorporated foundation

Attorney Kim Chang-soo, Counsel for the defendant-appellant

Seoul High Court Decision 93Gu26580, 27781 decided July 14, 1994

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. Summary of the reasoning of the judgment below

A. The facts acknowledged by the court below are as follows.

The plaintiff is a foundation which is established for the purpose of managing the above 3-year general shooting range and providing financial and technical assistance to the shooting range. The plaintiff's ground that the 1-year general shooting range and the 3-year general shooting range were located in Seoul Special Metropolitan City, Nowon-gu and its site were located in the 1980-year general shooting range and the 1-year general shooting range were excluded from the above 30-meter general shooting range and the 300-meter general shooting range were installed in the 1-year general shooting range and the 1-year general shooting range were not located in the 3-year general shooting range and the 3-year general shooting range were not located in the 1-year general shooting range and the 1-year general shooting range were installed in the 3-year general shooting range and the 1-year general shooting range was not located in the 1-year general shooting range and the 3-year general shooting range was not located in the 1-year general shooting range and the 1-year special shooting range was installed.

B. The lower court determined as follows on the premise of the foregoing factual relations.

Although the Plaintiff did not remove the above golf range facilities by itself, it seems that the Plaintiff started operating the golf range without making a large change in the phenomenon of using the shooting range which became unusable due to the lack of shooting range of 300 meters. The Plaintiff’s operation of the golf range is limited to making a minimum facility necessary for the golf range without making a large change in the existing shooting range facilities. Considering the fact that there is no building other than the shooting range managed by the Plaintiff and the military sports unit building in the vicinity of the instant golf range, it cannot be deemed that the construction administration is smooth and the purpose of designating the development restriction zone is significantly infringed upon the designation of the development restriction zone to prevent any disorderly expansion of the city and protect the natural environment surrounding the city, on the other hand, the Plaintiff’s loss in the removal of the instant facilities is enormous, and even if the Plaintiff failed to perform its duty to remove the instant facilities, the disposition of the instant golf range is unlawful under the premise that the Plaintiff’s failure to perform its duty to remove the public interest is extremely difficult.

2. However, as recognized by the lower court, the instant golf practice range facilities installed without permission in violation of the Urban Planning Act and the Building Act, and there is no possibility that the Plaintiff might be legalized because they are located in a development-restricted zone. Therefore, if such illegal golf practice range facilities are left unattended solely on the grounds as seen above, it would endanger the smooth performance of construction administration by nullifying the power of the authority regulating illegal buildings and preventing them from avoiding various restrictive regulations stipulated in the Urban Planning Act and the Building Act, thereby seriously impairing the public interest.

Therefore, the judgment of the court below which held that even if the golf practice range facilities of this case are not removed and they are left alone, they cannot be deemed to seriously undermine the public interest, is erroneous in the misapprehension of legal principles as to the requirements for vicarious execution under Article 2 of the Administrative Vicarious Execution Act, which affected the conclusion of judgment

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jae-soo (Presiding Justice)