建築法 違反과 履行强制金

초록

Infringement penalties are one of the enforcement measures that indirectly compels a person who has not complied with an order for correction. The article 79 of the Building Act permits the administrative authority to order the project owner, building owner etc to correct illegalities in the building. If the project owner or similar fails to comply with the order, the administration may repeatedly impose the infringement penalty until the obligation is fulfilled. The Supreme Court of Korea recently decided that the authority can issue an order pursuant to the article 79 to a person in whose name the application for a building permit is made, even if he/she is a project owner in name only. The Court is right in reaching this conclusion. The project owner, even if in name only, exercises a certain degree of control over the building; every contact with the administration, such as a report on commencement of the construction work, an application for revision to permits, or an approval for using the building is made in his/her name. At least, he/she can escape the responsibility by suing the real project owner and claiming the change of names on the building permit document. In the given case, not only the project was completed by the name of the plaintiff but also he was registered as the building owner on the real estate register. The plaintiff was in a position to comply with the order, that is to say, in a position to apply for the approval for using the building. The penalty was legally imposed. There remains one question on the subject. Contrary to the succession of illegality doctrine in Korea, courts say that the illegality of the order for correction is passed on to the infringement penalty. One can still claim revocation of the latter even after the period for bringing revocation litigation against the former is expired, by which time the former cannot be revoked for the mere illegality. Further research is needed to provide an adequate explanation coherent to the succession of illegality and other administrative law doctrines.

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