[2] Whether the Minister of Finance and Economy may entrust the Korea Asset Management Corporation or the Korea Land Corporation with the right to manage and dispose of administrative property pursuant to Article 32 (3) of the former State Property Act (negative)

[2] Article 21-2 of the former State Property Act (amended by Act No. 8635 of Aug. 3, 2007; hereinafter the same) grants the authority to entrust the management of administrative property to the head of the central government agency (referring to the head of the central government agency under Article 14 of the Budget and Accounts Act) to which the administrative property belongs, not to the Minister of Finance and Economy with respect to administrative property; Article 32 of the same Act and the proviso of Article 33(2) of the former Enforcement Decree of the State Property Act (amended by Presidential Decree No. 19643 of Aug. 14, 2006; hereinafter the same shall apply); Article 21-2 of the former State Property Act (amended by Ordinance No. 8635 of Nov. 13, 2001; hereinafter the "Rules on Entrustment with Miscellaneous Property") shall not be entrusted to the Korea Asset Management Corporation or the Korea Land Corporation; Article 32(3) proviso of the former Enforcement Decree of the State Property Act shall not apply to the Korea Asset Management Corporation or the Korea Land Corporation.

1. Regarding ground of appeal No. 1

A. The term "administrative property under the State Property Act" means a property owned by the State that is directly used or decided to be used for public, public, or corporate purposes. Among them, it is insufficient to view that a property for public purposes such as a road or park is determined to be used for public purposes or to be used for public purposes by an administrative disposition (see Supreme Court Decision 9Da54332, Feb. 25, 200); if it is actually used as administrative property, it constitutes an administrative property (see Supreme Court Decision 9Da5432, Jan. 4, 1980; Article 2 of the Addenda to the National Land Planning and Utilization Act (Act No. 6655, Feb. 4, 2002; hereinafter the same shall apply) before the Urban Park Act enacted by Act No. 3256, Jan. 4, 198; or if it is a state-owned land determined and publicly announced as an administrative disposition, it constitutes an administrative property under the former Urban Planning Act to be used for public purposes (see Supreme Court Decision 97Da248134, Sept. 4, 1998).

According to the reasoning of the judgment below and the record, the Minister of Construction and Transportation determined and publicly announced a part of 17,670 square meters as urban planning facilities (park), including the land in this case as the main owner of Seodaemun-gu, Seoul, Seoul, as the construction department announcement No. 460 on Nov. 22, 1973. The head of the Seoul Special Metropolitan City, the project implementer, established an urban planning project implementation plan (ro park) and delegated his authority by the Minister of Construction and Transportation on July 29, 1975, announced the authorization of an urban planning project (park) under the Seoul Special Metropolitan City announcement No. 106 on July 116, 197, respectively. The construction of the urban planning facilities (park) was completed on July 222, 1976. After that, the Mayor of the Seoul Special Metropolitan City determined to newly construct the underground parking lot in this case as the method of attracting private investment, and the Mayor of the Seoul Special Metropolitan City, the head of the Seoul Special Metropolitan City, the project implementer, still installed the parking lot in this case.

Examining these facts in light of the legal principles as seen earlier, the part of the judgment below which determined that there was an act of commencing public use when Korea determined and announced the instant land as an urban planning facility (park) on November 22, 1973 was erroneous; however, since the Mayor of Seoul Special Metropolitan City publicly notified the contents of authorization of the implementation plan for the urban planning project (Guro Park) under the former Urban Planning Act and constructed the Seodaemun Park at the latest, it can be said that there was an act of commencing public use of the instant land around July 22, 1976, which completed the creation of the Seomun Park at the latest, and since there was no subsequent abolition of its use, it is justifiable to conclude that the court below determined the legitimacy of the decision of entrusting state property on January 6, 2006 on the premise that the instant land is administrative property

(b) Article 4 of the former State Property Act (amended by Act No. 8635, Aug. 3, 2007; hereinafter the same shall apply) classify the State property into the administrative property, conservation property, and miscellaneous property. Article 6 of the same Act (hereinafter referred to as the “Office of General Administration”) prescribes that the head of each central government agency (referring to the head of each central government agency under the provisions of Article 14 of the Budget and Accounts Act; hereinafter the same shall apply) shall administer the State property under his/her jurisdiction, except for the State property under the provisions of Article 21 and the proviso of Article 21-2 of the same Act; hereinafter the same shall apply). The former Enforcement Decree of the Office of General Administration may delegate the administrative affairs of the State property and conservation property under its jurisdiction to the public officials belonging to the Office of Administration or the public officials belonging to the Office of Administration (hereinafter the same shall apply to the Korea Asset Management Corporation established under the provisions of Article 32 of the same Act, and may, in principle, delegate the administrative affairs of the State property and conservation property to persons other than the Office of Administration.

As such, Article 21-2 of the former State Property Act grants the authority to entrust the administration of administrative property to the competent administrative agency, which is not the office of general administration, and Article 32 of the same Act and the proviso of Article 33(2) of the Enforcement Decree of the same Act provide that only the miscellaneous property and preserved property may be entrusted to the Korea Asset Management Corporation or the Korea Land Corporation, and the miscellaneous property entrustment rules also apply to the management and disposal of miscellaneous property entrusted to the Korea Asset Management Corporation or the Korea Land Corporation. In full view of the fact that Article 32(3) of the former State Property Act, Article 33(2) proviso of the Enforcement Decree of the same Act, and Articles 2 and 3 of the Miscellaneous Property Entrustment Rules, the office of general administration may not entrust the Korea Asset Management Corporation or the Korea Land Corporation with the right

According to the reasoning of the judgment below, on July 1, 2006, the Minister of Finance and Economy rendered a decision to entrust the Defendant with the management right of other miscellaneous property en bloc based on Article 32(3) of the former State Property Act, the proviso of Article 33(2) of the Enforcement Decree of the same Act, and Articles 2 and 3 of the Miscellaneous Property Entrustment Rules, and included the land of this case, which is administrative property in the property list subject to the decision. The court below determined that the part concerning the land of this case was based on the provisions that cannot be the basis for the entrustment of management right, and thus the defect was significant and apparent.

Such determination by the court below is just in accordance with the legal principles as seen earlier, and contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles on the administration and entrustment of administrative property under the State Property Act or by failing

2. Regarding ground of appeal No. 2

The gist of this part of the ground of appeal is that the plaintiff did not have any evidence to acknowledge that the land of this case was legally entrusted to the defendant with the right to manage and dispose of it as miscellaneous property, or that the plaintiff withdrawn the consent to use the land of this case to the plaintiff without compensation by the disposition of this case. However, the land of this case is administrative property, and the decision of entrustment of state-owned miscellaneous property on July 1, 2006 by the Minister of Finance and Economy on the entrustment of state-owned miscellaneous property on the land of this case was deemed null and void because its defect is serious and clear. Thus, the ground of appeal on the other premise is without merit without any need to further examine.

3. Conclusion

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 on the bench.

Justices Kim Yong-deok (Presiding Justice)