[대부국유임야양여거부처분취소][공1985.2.1.(745),170]
Whether an act of refusing an application for grant of national forest is an administrative disposition subject to administrative litigation (negative)
Since lending, selling, or transferring state-owned forest land in accordance with the provisions of the Forestry Act, etc. is an act under the private law that is conducted on the equal footing with the other party as a private economic entity, the rejection disposition taken by the plaintiff (forest fraternity) is merely an act under the private law, but is not an administrative act, and thus is not subject to administrative litigation.
Articles 75 and 80 of the Forestry Act, Article 1 of the Administrative Litigation Act
Supreme Court Decision 83Nu239 delivered on August 23, 1983, 83Nu240 Delivered on September 13, 1983
[Defendant-Appellee] Jinyang 2nd Forest Department (Attorney Kim Byung-jin, Counsel for defendant-appellee)
Attorney Kim Dong-hwan, Counsel for the defendant-appellant
Seoul High Court Decision 82Gu863 delivered on April 20, 1983
The appeal is dismissed.
The costs of appeal shall be borne by the plaintiff.
The grounds of appeal are examined.
Under the provisions of the Forestry Act, the former Forestry Act, or the former Forestry Act, etc., lending, selling, or transferring state forest land is an act under the private law that is conducted on an equal basis with the other party as the subject of private economy and it cannot be deemed an act under the administrative disposition or legal relationship under the public law. Thus, the defendant's rejection disposition of this case, which rejected the plaintiff's application for grant of state forest land, is an act under the private law as the subject of public authority and is not an act under the administrative disposition or other legal relationship under the public law. Even if the plaintiff who filed an application for grant of state forest land of this case, is a public corporation established under the former Forestry Act, the defendant's refusal of grant of state forest land of this case shall not be deemed to exercise public authority in the superior position, unlike the case of an individual or private corporation, and the court below's rejection of the lawsuit of this case seeking its revocation is just and there is no violation of the equality principle or the trust protection principle as pointed out therein, and it cannot be said that the judgment of this case is rejected.
Therefore, the appeal is dismissed, and the costs of the appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Lee Jong-soo (Presiding Justice)