Invalidity Nullity

Law Firm Macro et al., Counsel for defendant

Attorney Kim Gi-ok

Attorney Jeong Jong-woo, Counsel for the defendant-appellant

2. The costs of lawsuit shall be borne by the Plaintiff.

A. The plaintiff is a yacht (the captain of the case 7.5m; hereinafter referred to as "the yacht in this case") owned by the plaintiff in the moorings of the yacht course among the yacht course facilities managed by Busan Metropolitan City (hereinafter referred to as "the yacht of this case").

B. From March 28, 2007 to April 17, 2007, the Defendant pre-announced the Busan Metropolitan City Ordinance on the Management of Sports Facilities for 21 days. The above pre-announcement stated that "no change has been made since the amendment in 1990" was stated to the purport that "the above pre-announcement will be applied to the reality of the use fee of yacht stadiumss that did not reflect the price increase in the past, the reduction and exemption of user fee for the operation of yachts used in training and games, the expansion of the usage fee reduction and exemption for the operation of yachts for the purpose of improving the sports power of the representative players, and the renovation of the mooring facilities

C. Although 12 cases among the 13 opinions submitted during the pre-announcement period were opposed to the proposed amendment ordinance, the Busan Metropolitan City decided that the above opinion cannot be reflected in order to realize the user fee awarded for 16 years, and the above opinion was presented to the Municipal Rule Deliberation Committee on April 26, 2007 along with the above amendment ordinance and the opinion submitted during the pre-announcement period.

D. The Defendant, following the resolution of the Busan Metropolitan Council, amended and promulgated the Busan Metropolitan City Ordinance on Partial Amendment to the Ordinance on the Management and Operation of Sports Facilities (hereinafter “instant Ordinance”) by Ordinance No. 4172 on June 6, 2007.

E. The details of the usage fee list for each yacht stadium facility in attached Table 7 of the Busan Metropolitan City Ordinance on the Management and Operation of Sports Facilities (hereinafter “former Ordinance”) prior to the above amendment are as follows.

A person shall be appointed.

A person shall be appointed.

F. Details of the user fees for each stadium facility in attached Table 8 of the instant Ordinance are as follows.

A person shall be appointed.

2. The term "temporary use" means the period of temporary use within 15 days, and the term of temporary use means the period of temporary use for at least 16 days a month, and in such cases, it shall be deemed one month.3. When permanent use is made at the mooring place, the full-time use fees for accessory facilities, such as electricity and water supply, shall be added to the said full-time use fees and collected in addition to the total user fees for the mooring place; 4. 70% of the user fees shall be reduced or exempted for the operation, etc. used for exercises and games of national team players or City/Do team players. 5. The total user fees for mooring facilities shall be reduced or exempted when advance payment is made for at least three months;

[Reasons for Recognition] The facts without dispute, Gap evidence 1-2, Eul evidence 1-5, 15, 17, 18, 19, witness W1-1, and the purport of the whole pleadings

2. Whether the lawsuit is lawful;

A. The defendant's argument

The defendant asserts that the lawsuit of this case is unlawful since the general abstract rules such as municipal ordinances are not administrative disposition that directly infringes on the rights of the people.

B. Determination

However, in a case where a municipal ordinance, without involvement in the enforcement of an act of enforcement, directly affects the specific rights and obligations of citizens or legal interests as a matter of its own, such municipal ordinance constitutes an administrative disposition subject to appeal litigation (Supreme Court Decision 95Nu8003 delivered on September 20, 1996). The municipal ordinance of this case is a content that determines the amount of usage fees to be borne by the user of the mooring hall of this case, and is obliged to pay usage fees as prescribed by the above municipal ordinance. Thus, the municipal ordinance of this case is an administrative disposition that directly affects the specific obligations of citizens and thus constitutes an administrative disposition subject to appeal litigation.

Therefore, the defendant's main defense is without merit.

3. The legality of the amended municipal ordinance;

A. Summary of the parties' assertion

(1) The plaintiff's assertion

In the process of amending and enacting the instant Ordinance, the Plaintiff asserted that: (a) even though the users of the instant mooring Chapter, including the Plaintiff, expressed their dissenting opinions, they did not hold a public hearing to hear and gather opinions from citizens; (b) unilaterally decided to amend the instant Ordinance without due process of hearing opinions from interested parties; and (c) although Article 22 of the Public Property and Commodity Management Act and Article 14 of the Enforcement Decree of the said Act stipulate that the increase of 10% compared to the previous year is appropriate, raising the usage fees of the instant mooring Chapter at one time, which is a public fee, is unfair; and (d) compared with the yacht Chapter (hereinafter referred to as the “private design site”), one-year usage fees of the instant mooring Chapter at one-year rate in comparison with the instant yacht Chapter operated by the Briart Co., Ltd. (hereinafter referred to as the “private design site”). In the event of reducing unnecessary personnel expenses, it is unnecessary to increase the usage fees of the instant mooring Chapter.

(2) The defendant's assertion

The defendant asserts that, according to the procedure of partial amendment of municipal ordinances, the pre-announcement of legislation was made from March 28, 2007 to April 17, 2007; ② the plaintiff et al. has been enjoying profits since the fees for the mooring of this case have not been increased for 16 years; and considering that various fees have been adjusted for at least 5 years, the above fees are expected to be difficult to increase for the next five years; and considering the consumer price or the rate of increase in public transportation and the fees for the use of the shooting design, the above fees under the municipal ordinances cannot be deemed excessive.

(b) Fact of recognition;

(1) During the period between 190 and 2006, the consumer price index of Busan Metropolitan City is 2.02 times (i.e., 102.2/50.48; less than two places below the decimal point; hereinafter the same shall apply); 2.27 times in the case of food and non-alcoholic beverage among the living things (i.e., 100.5/44.091); 2.68 times in the case of taxi (i.e., 106.2/39.2/397); 5.88 times in the case of electric metal (i.e., 11.1/18.87); 0.73 times in the case of urban bus charges (i.e., 110.9/19.324); 20.64 times in the case of non-city bus charges (i.e., 20., the number of people within 10.5 meters in the case of the instant facilities).

(3) The Busan Yak Stak Stak Stak Stak Stak St St Stak St Stak St St St Stak has 36 buildings and yachts Staks Staks Staks Staks Staks Staks Staks St. 138,561 square meters on the ground, and 92,242 square meters on the sea, and 36 buildings and yachts p. 448. The total number of 28 persons, including 16 employees, are managing the above facilities. According to the current status of imposition of user fees for the mooring St. 207 St. 73.8% of less than 3 months, less than 3 months and less than 20.8% of the total number of imposition, not less than 7 months and not more than 11 month and not more than 2.4% of 1 year and 3.0% of 1 year. (4) Article 38 of the Enforcement Decree of the Value-Added Tax Act was amended on February 9, 2006.

[Reasons for Recognition] Unsatisfy, Gap evidence 2, 7, Eul evidence 7, Eul evidence 8-1, Eul evidence 10, 11, 15, Eul evidence 20-1, 20-2, witness W1, and W2, fact-finding results of fact-finding conducted by this court on Biet Co., Ltd., the purport of the whole pleadings

C. Determination

(1) Whether the amendment procedure of municipal ordinances is unlawful

On the other hand, Article 22(2) of the Administrative Procedures Act provides that a public hearing shall be held in cases where an administrative agency provides that a public hearing shall be held in accordance with other Acts and subordinate statutes, or where an administrative agency deems it necessary to extensively gather opinions with a wide range of influence on the pertinent disposition, a public hearing shall be held. It does not provide that a public hearing shall be held in cases where ordinances are enacted or amended even in the Local Autonomy Act, Ordinances and Rules of Busan Metropolitan City, and there is no evidence to deem that there is a wide range of influence due to increase in the

In addition, since the defendant was under pre-announcement of legislation of this case for 21 days and received 13 opinions on the amendment of this Ordinance during the above period, the Busan Metropolitan City's review of the above opinions and presented the above opinions together with the amendment of this Ordinance to the Municipal Ordinance Deliberation Committee as seen earlier, it cannot be said that the above amendment procedure is unlawful solely on the grounds that the defendant did not hold a public hearing while amending this Ordinance, or that the opinion against the amendment of this Ordinance was not actually reflected.

(2) Whether the Ordinance of this case deviates from or abused discretionary power

(3) Article 14 (1) of the Enforcement Decree of the Public Property and Commodity Management Act provides that “The annual fee under the provisions of Article 22 (1) of the above Act shall be set at a minimum of 10/1,00 of the appraised value of the pertinent property by reflecting the market price, but the fee for public property shall not be set within the limit of 10/10 of the previous year as alleged by the Plaintiff.” (2) If the period for the imposition of the fee for the mooring of this case is less than one year based on the year 2007, the fee for the use of the mooring of this case is less than 97%, and it is difficult to see that the annual fee for the use of the mooring of this case is less than 2,40,00 won (excluding value-added tax, hereinafter the same shall apply), 290,000 won, 240,000 won, 200,000 won, and 20,000 won, respectively, for the purpose of this case of this case.

4. Conclusion

Therefore, the claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judge Sung-sung

Judges Kim Jong-chul