[2] Whether only the fact that a certain administrative disposition was revoked in an appeal litigation after the pertinent administrative disposition can be determined immediately by the public official’s intentional or negligent act and constitutes a tort (negative), and in such a case, the requirements for establishing State liability and the criteria for determining the State liability

[3] Whether an administrative agency is liable for damages in a case where the administrative agency continues to render an illegal administrative disposition or any other disadvantage that can be assessed as an equivalent act by gathering an opinion contrary to the established interpretation of the law (affirmative)

1. As to the Plaintiff’s ground of appeal No. 1

In order for a defective administrative disposition to be null and void as a matter of course, it must be objectively obvious that the defect violates the important part of the law and is objectively obvious. In determining whether the defect is significant and obvious, the purpose, meaning, function, etc. of the law should be examined from a teleological perspective, and at the same time reasonable consideration should be made on the specificity of the specific case itself. In a case where an administrative agency has taken an administrative disposition by applying a certain provision to a certain legal relation or factual relations, it is clearly stated that the legal principle that the provision of the law is not applicable to the legal relation or factual relations, and even though there is no room for dispute over the interpretation, if an administrative agency has taken the disposition by applying the above provision, it shall be deemed that the defect is significant and obvious. However, if there is room for dispute over the interpretation because the legal principle that the provision of the law is not applicable to the legal relation or factual relations is not clearly revealed, even if the administrative disposition by erroneous interpretation is merely erroneous as to the fact of the disposition requirements (see Supreme Court Decision 2002Da68485, Oct. 15, 2

Article 2 of the former Special Act on the Management of Metropolitan Transport in Metropolitan Areas (amended by Act No. 6852, Dec. 30, 2002; hereinafter referred to as the "Act") provides that a project subject to the imposition of charges shall be subject to the imposition of charges where a project under any subparagraph of Article 11 of the Act is approved or authorized after the enforcement date of the Act, and there is a provision in the above Addenda only where an urban development project, etc. is approved after the enforcement date of the Act, the proviso of Article 11 subparagraph 4 of the Act shall be applied, and the housing construction project shall not be subject to the imposition of charges (see Supreme Court Decision 2003Du9145, Apr. 27, 2004). Thus, the Plaintiff implementing a housing construction project within the urban development project in the area of this case is not subject to the imposition of charges, and the disposition of this case is serious as it imposes charges on the Plaintiff not subject to the imposition of charges due to an erroneous interpretation of the relevant laws and regulations.

However, the above legal principle has been declared by the Supreme Court decision only after the disposition of this case is made, and Article 2 of the Addenda of the Act only provides that the charges shall apply to projects which have been approved or authorized after the enforcement date of the Act, and therefore it may be deemed that the requirements for the imposition of charges not only the requirements for imposing charges but also the requirements other than the imposition system after the enforcement date of the Act. Although the legislative purport of the proviso of Article 11 subparagraph 4 of the Act is unclear, it is not clear that the land subject to urban development projects, etc. becomes land subject to urban development projects, if it is deemed that the charges will not be imposed double, it is sufficient to exclude the housing construction projects conducted within urban development project zones, etc. subject to the approval or authorization after the enforcement date of the Act from imposition of charges, and it cannot be objectively interpreted that the housing construction projects are subject to the imposition of charges under the proviso of Article 10 of the Act, even if the land becomes land subject to urban development projects after the enforcement date of the Act, it is not subject to the imposition of charges under the proviso of Article 10 of the Act.

Therefore, the judgment of the court below which dismissed the Plaintiff’s claim for return of unjust enrichment on the ground that the above defects existing in the disposition of this case cannot be deemed as null and void as a matter of course, did not err by misapprehending the legal principles as to the invalidation

The Supreme Court precedents cited as the grounds of appeal (Supreme Court Decision 81Da400 delivered on June 9, 1981, Supreme Court Decision 91Da42166 delivered on July 13, 1993) are not appropriate to be invoked in this case, unlike the case.

2. As to ground of appeal No. 2 by the Plaintiff

Even if a certain administrative disposition has been revoked after an administrative disposition, it cannot be determined that the pertinent administrative disposition was caused by the intention or negligence of the public official immediately and constitutes a tort by virtue of res judicata. It is reasonable to deem that the public official in charge of such administrative disposition satisfies the requirements for State compensation under Article 2 of the State Compensation Act in a case where it is deemed that the administrative disposition has lost objective legitimacy by failing to perform objective duty of care when considering the standard public official. In this case, whether the administrative disposition has lost objective legitimacy should be determined by taking into account all the circumstances such as the type and nature of gains of infringement, the form and reason of the administrative disposition that constitutes infringement, the degree of involvement of the victim in the exercise of the administrative disposition, and the degree of damage (see, e.g., Supreme Court Decisions 9Da7060, May 12, 2000; 2002Da31018, Jun. 11, 2004).

According to the reasoning of the judgment below, the court below held that the disposition of this case as to each charge listed in the annexed list 1 through 14 of the judgment of the court below and the collection of charges therefrom are illegal as a result, even though the public official belonging to the defendant is judged to be illegal as a result, as long as the public official belonging to the defendant performs his duties in accordance with the judgment that there is a reasonable ground, it cannot be viewed as an intentional or negligent act to recognize liability for damages to the local government by violating the duty of due care as an average public official in good faith. The judgment of the court below is just in light of the above legal principles, and there

3. As to the Defendant’s ground of appeal

As a rule of law principle or the principle of legality of administration as a rule of law intends to protect an individual from an administrative person's individual and guarantee the predictability of administrative actions. Thus, administrative agencies should always be bound by law under the basis of law. Thus, when an administrative agency takes an administrative disposition based on a certain law, if there is a conflict of opinion about interpretation and application of the law, and the Supreme Court, in the relevant administrative litigation, ruled that an administrative disposition based on the law is illegal, the same legal relation or factual relation shall not be applied and confirmed formally and finally. Thus, under such circumstance, an administrative agency shall comply with the request of the rule of law unless there are special circumstances, and thus, it is liable to prevent or avoid any illegal administrative action identical to the administrative disposition confirmed by the decision of the Supreme Court with respect to the legal relation or factual relation identical to that of the administrative disposition, which is confirmed by the decision of the Supreme Court, thereby protecting the trust of the other party to the disposition.

Therefore, even if an administrative agency has taken a certain opinion before the establishment of the interpretation of the relevant Act and has caused the occurrence of unfair enforcement of the Act and subordinate statutes, if it was difficult to expect that it would be an average public official in good faith at the time of the disposition, it shall not be deemed that it would result from the negligence of a public official (see Supreme Court Decisions 95Da32747, Oct. 13, 1995; 2002Da31018, Jun. 11, 2004; 2002Da31018, Jun. 11, 2004; 2002Da31018, etc.). However, in a situation where the interpretation of the relevant Act and subordinate statutes was established, and where it was possible for the superior administrative agency or the competent administrative department to sufficiently recognize it through the work guidelines or contact with the established interpretation of the relevant Acts and subordinate statutes, and thus, it would be against the intention or negligence of the public official and be liable for damages.

In light of the relevant statutes and the records, the court below erred by finding that the Ministry of Justice, which is one of the grounds for official duties as stated in the judgment of the public official in charge belonging to the defendant, provided guidance to cancel the imposition of charges similar to the Supreme Court's decision on June 2004 by the relevant article only to each local government, as stated in the judgment of the court below. However, since the contents of the guidelines of the Ministry of Justice are confirmed to have been followed by the Supreme Court's decision regarding the same issue as the dispositions of this case with regard to the national prosecutor's office which is responsible for administrative litigation, it can be known that the public official in charge of the administrative litigation should deliver more unnecessary litigation to the litigation performers belonging to the administrative agency, and according to the facts duly established by the court below, the charges No. 15 stated in the separate list of the court below is confirmed by the Supreme Court's decision, and accordingly, the Ministry of Justice's guidelines were already delivered to the public official in charge belonging to the defendant, and thus, it is not likely that the payment of charges will not be made in the last installment.

In the end, although the judgment of the court below includes a somewhat inappropriate decision in judging the duty of the public official belonging to the defendant, the conclusion that the public official belonging to the defendant is liable for damages is acceptable, and there is no error of law by misunderstanding of facts or incomplete deliberation as to the defendant's illegal act or by misunderstanding of legal principles as to the duty

4. Conclusion

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

Justices Ahn Dai-hee (Presiding Justice)