(a) In issuing an order to remove a building in violation of the Building Act, and guiding the vicarious execution to be performed upon nonperformance of such obligation, the specific method and scope of the act to be performed by the obligor upon nonperformance of such obligation, and that to be performed by the obligor;

(b) The case holding that a measure taken against only the husband as an obligor is lawful when the building was purchased and registered in his/her wife and joint name, and thereafter the building was expanded without permission, in making a disposition of removal, replacement, execution, and dismissal on the extended part;

A. Under Article 42(1) of the Building Act and Articles 2 and 3(1) of the Administrative Vicarious Execution Act, when an administrative agency issues an order to remove a building in violation of the Building Act and imposes an order to remove it by vicarious execution upon nonperformance of the obligation, the content and scope of the act to be performed by the obligor and the act to be performed by vicarious execution upon nonperformance of the obligation should be specified in detail. However, the contents and scope of the act are not to be specified only by a removal order or a vicarious execution order, but it is sufficient to specify it by taking into account the documents or other circumstances delivered before and after the disposition.

B. The case holding that a measure taken by only the husband as an obligor is lawful in the disposition of removal, replacement, execution, and disposal, on the ground that the husband has a duty to remove the extended part, in case where the building was purchased and registered in his wife's joint name, and the building was expanded without permission.

Articles 2 and 3 of the Administrative Vicarious Execution Act; Article 42(1) of the former Building Act (wholly amended by Act No. 4381, May 31, 1991)

A. Supreme Court Decision 89Nu4543 delivered on January 25, 1990 (Gong1990,561) 90Nu1070 delivered on March 12, 1991 (Gong1991,1192) 91Nu4607 delivered on February 25, 1992 (Gong192,183)

[Judgment of the court below]

The head of Jung-gu Seoul Metropolitan Government

Seoul High Court Decision 91Gu6841 delivered on July 24, 1991

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

1. On the first and fourth grounds:

According to the reasoning of the judgment below, the court below rejected the plaintiff's assertion that the 6th floor of the building of this case was extended without permission on December 10, 1958 under the Seoul Special Metropolitan City Regulations on the Control of Unauthorized Building which was constructed before December 31, 1981, and thus excluded from the removal. The above 6th floor of this case was extended without permission on July 1984 by the plaintiff, and if it is neglected without permission, it would endanger the smooth execution of the construction administration and endanger the public interest to prevent the avoidance of the restriction stipulated in the Building Act in advance at the time of permission and completion inspection under the law. In light of the records, the judgment of the court below is justified, and there is no error of law such as misunderstanding the legal principles as to Article 2 of the Administrative Vicarious Execution Act or misunderstanding the rules of evidence or incomplete deliberation, etc.

2. On the second ground for appeal:

In the event that an administrative agency issues an order to remove a building in violation of the Building Act and an order to take a vicarious execution upon nonperformance of such order under Article 42(1) of the Building Act and Articles 2 and 3(1) of the Administrative Vicarious Execution Act, the content and scope of the act to be performed by the obligor and the act to be performed by the vicarious execution upon nonperformance of such order shall be specified in detail. However, the contents and scope of the act are not necessarily specified by a removal order or a written order for vicarious execution, but it is sufficient to specify it by considering documents or other circumstances delivered before and after the disposition (see Supreme Court Decision 90Nu1070 delivered on March 12, 191).

According to the evidence No. 6 (Corrective Order and Record No. 58) of this case, the defendant ordered the plaintiff on Sep. 22, 1989 and on Sep. 28, 1989, to remove the part of the wooden building installed within the sixth floor of the above building, which is easy to remove, such as the part of the wooden building, can be acknowledged that the defendant forced removal, but remaining steel and concrete parts can be found to be sufficiently known as the defendant's removal method and human resources so it is impossible to remove them, so the contents and scope of the duty of performance can be sufficiently known. Thus, the order of this case cannot be viewed as not specifically specifying the contents and scope of the act of vicarious execution, and even if there is a little difference between the area indicated in the report and the actual area.

The judgment of the court below to the same purport is just and there is no violation of law as otherwise pointed out.

3. On the third ground for appeal

As determined by the court below, if the plaintiff purchased the building of this case and registered it in joint name with his wife, and thereafter illegally expanded the above sixth floor portion, the plaintiff is obligated to perform the construction of this case in accordance with Article 42 (1) of the Building Act. Thus, the judgment below is just and there is no error of law in the misapprehension of legal principles as pointed out. All of the arguments are groundless.

Therefore, the appeal is dismissed and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Yong-sung (Presiding Justice)