[1] In a case where a person subject to a disposition or an order to take measures under Article 78 (1) of the former Urban Planning Act violates such order, whether such a disposition or order to take measures is required to be lawful in order to punish him/her under Article 92 of the same Act (affirmative)

[2] Whether a person who acquired a building or structure in violation of the purpose of designating the development restriction zone may be ordered to take measures such as disposition or reinstatement under Article 78 subparagraph 1 of the former Urban Planning Act (negative)

[3] The case holding that since the measures of the head of the Gu ordering the purchaser of a vinyl constructed in a development restriction zone to remove it and restore land to its original state are unlawful, it cannot be punished as a violation of an order to take corrective measures under Article 92 subparagraph 4 of the former Urban Planning Act on the ground that such corrective measures were not complied with

[1] In a case where a person who was subject to a disposition or an order to take measures under Article 78 of the former Urban Planning Act (amended by Act No. 6243 of Jan. 28, 200) violates it, such disposition or order to take measures must be lawful, and even if such disposition is not void automatically, it cannot be established as a violation of Article 92 of the same Act, insofar as it is recognized as an illegal disposition.

[2] Comprehensively taking into account the provisions of Article 92 subparag. 4, Article 78 subparag. 1, and Article 21(2) of the former Urban Planning Act (amended by Act No. 6243 of Jan. 28, 200), in a case where a building, installation of structure, etc. in violation of the purpose of designation of the area was conducted within the development restriction zone, the administrative agency may order the person who constructed the building or installed the structure to take measures such as disposal or reinstatement pursuant to Article 78 subparag. 1 of the same Act only for the person who installed the building or installed the structure, and the person who acquired the building in violation shall not be allowed to take such measures

[3] The case holding that since the measures of the head of the Gu ordering the purchaser of a vinyl constructed in a development restriction zone to remove it and restore the land to its original state are unlawful, it cannot be punished as a violation of the order to take measures under Article 92 subparagraph 4 of the former Urban Planning Act (wholly amended by Act No. 6243 of Jan. 28, 200) on the ground that it did not comply with such corrective measures

[1] Articles 78 and 92 of the former Urban Planning Act (amended by Act No. 6243 of Jan. 28, 200, Article 2 of the Addenda to the National Land Planning and Utilization Act of Feb. 4, 2002) / [2] Articles 21(2), 78 subparag. 1, and 92 subparag. 4 of the former Urban Planning Act (repealed by Act No. 6243 of Jan. 28, 2000, Article 2 of Addenda to the National Land Planning and Utilization Act of Feb. 4, 2002) / [3] Articles 78 subparag. 1, 92 subparag. 4 of the former Urban Planning Act (amended by Act No. 6243 of Jan. 28, 200, Article 665 of the Addenda to the National Land Planning and Utilization Act of Feb. 4, 2002)

[1] Supreme Court Decision 90Do1709 delivered on August 18, 1992 (Gong1992, 2790) Supreme Court Decision 96Do1237 delivered on July 12, 1996 (Gong199Ha, 2575)

Defendant

Prosecutor

Seoul District Court Decision 2000No9735 delivered on May 8, 2001

The appeal is dismissed.

We examine the grounds of appeal.

In case where a person who is subject to a disposition or an order to take measures as stipulated in Article 78 of the former Urban Planning Act (amended by Act No. 6243 of Jan. 28, 200; hereinafter referred to as the "Act") violates it, such disposition or order to take measures shall be lawful. Even if such disposition is not void automatically, it cannot be established as long as it is recognized as an illegal disposition (see Supreme Court Decision 96Do1237, Jul. 12, 1996; 96Do1237, Jul. 12, 1996; 92 subparag. 4, 78 subparag. 1, and 21(2) of the Act, in light of the above provisions, in case of construction of a building or construction of a structure in violation of the purpose of designation of the area, the administrative agency can only take over the building or construction of the structure in violation of Article 78 subparag. 1 of the Act.

Based on the evidence of employment, the court below reversed the judgment of the court of first instance which found the defendant guilty of the charges of this case and sentenced the defendant not guilty on the ground that the defendant was not a person who directly constructed each of the above plastic houses in accordance with Article 78 subparagraph 1 of the Act and ordered the defendant to correct each of the above land by removing all of the above plastic houses in accordance with Article 78 subparagraph 1 of the Act on the ground that he violated restrictions within the development-restricted zone under Article 21 of the Act, and therefore, the defendant cannot be punished as a violation of Article 92 subparagraph 4 of the Act on the ground that he did not comply with the corrective order, such as an order to take measures under Article 92 subparagraph 4 of the Act on the ground that the defendant cannot be punished as a violation of the law on the ground that he did not have any evidence of crime or has no evidence of crime. In light of the records, the court below's aforementioned fact-finding and judgment are acceptable, and there is no error in the misapprehension of legal principles as to the interpretation of Article 92 subparagraph 4 and Article 78 subparagraph 1 of the Act.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Shin-chul (Presiding Justice)