[2] Requirements for deeming that a certain measure by an administrative agency constitutes a rejection disposition against an application for permission to use and benefit from administrative property by a private person

[3] In a case where a person who donated a park facility in Seoul filed an application to the effect that he/she seeks permission for commercial use for ten years on the basis of the fact that he/she had promised to use the facility after the expiration of the period of free use, the case holding that the head of the Seoul Park Management Office’s rejection of the application and notification of the conditional permission for

1. On July 12, 2004, the part concerning the revocation of the disposition of refusal to apply for the entrustment of administration or the permission for commercial use and the part concerning the claim for confirmation of illegality of omission

The expression of intent to file an application with an administrative agency must be clearly and definitely determined (see, e.g., Supreme Court Decision 2003Du13236, Sept. 24, 2004). In principle, whether an expression of intent in a document seeking a certain disposition against an administrative agency constitutes an act of filing an application should be determined by considering various circumstances, including the content of the document and the process, time of preparation, submission, and purport of the document. Meanwhile, in light of the nature of the permission to use and benefit from administrative property, citizens have the right under the law or sound law to apply for permission to use and benefit from administrative property (see, e.g., Supreme Court Decision 97Nu105, Feb. 27, 1998). It is unlawful for an administrative agency to refuse the application or to take a certain measure within a considerable period of time without a justifiable reason, and in order for an administrative agency to consider a certain measure as an act of filing an application, it should be determined that the applicant constitutes an act of refusal and benefit from administrative property.

According to the reasoning of the judgment of the court below, the court below partially accepted the judgment of the court of first instance, and found the plaintiff's submission of the proposal of this case as of March 9, 2004 constitutes "application" with a clear and conclusive declaration of intention to obtain permission for the use of the primary facility of this case against the defendant, who is an administrative agency. The defendant's response to the plaintiff on November 28, 1985, the nature and contents of the disposition for permission for the use and profit of public property, and the contents of Article 9 of the loan agreement of this case as to the primary facility of this case which the plaintiff installed and donated to the defendant, the court below decided that the plaintiff's submission of the proposal of this case as of May 11, 1988 to July 10, 204 constitutes an unlawful rejection disposition of the plaintiff's provisional rejection disposition as of July 21, 2004, and thus, it did not constitute an unlawful rejection disposition against the plaintiff's application of this case as of July 14, 2004.

In light of the above legal principles and records, we affirm the above judgment of the court below as to the revocation of the rejection disposition of the application for the entrustment of management or the permission for commercial use as of July 12, 2004 and the request for confirmation of illegality of omission.

This part of the judgment of the court below is not erroneous in the misapprehension of law as alleged in the plaintiff and defendant's grounds of appeal.

2. On July 11, 2005, the part concerning the revocation of the disposition of refusal to apply for the entrustment of administration or the permission for commercial use and the part concerning the claim for confirmation of illegality of omission

According to the records, on the ground that the defendant's temporary use permit disposition as of July 12, 2004 against the plaintiff's application as of March 9, 2004 constitutes an actual rejection disposition against the plaintiff's application, the plaintiff filed a lawsuit of this case seeking its revocation, and the defendant asserted that the above temporary use permit period (as of March 30, 2005 and June 29, 2005) was expired during the court of first instance, the above temporary use permit period (as of July 11, 2004 and July 10, 2005) and the above temporary use permit period as of March 30, 2005 and the above temporary use permit as of June 29, 205 were promised for 10 years after the expiration of the free use permit period, but the defendant consistently asserted that the above temporary use permit disposition as of July 201 and the above temporary use permit as of July 205, 2005 were not permitted, and instead, the defendant's allegation that the above temporary use permit disposition as of 30 years against the plaintiff's allegation.

According to the legal principles on the above facts and the interpretation of the rejection disposition as seen earlier, the second application of the plaintiff in the year 2005 is a final application for the purport that, unlike the first application in the year 2004, it is a comprehensive and general application for the defendant's intention to avoid the defendant's intention while proposing a plan for commercial use for a long period of 50 to 100 years by the new transfer-transfer-lease method of the plaintiff participating in the plaintiff at the expiration of the free use period of this case, the second application of the plaintiff in the year 2005, which is a comprehensive and general application for the defendant's intention to lead to the defendant's intention for commercial use for ten years

Nevertheless, the court below rejected the main claim seeking the revocation of the above rejection disposition on the ground that there was no response as to the second application of the above contents such as the defendant's rejection disposition, and judged only the preliminary claim seeking the confirmation of illegality of the omission is erroneous in the misapprehension of the purport of the second application of the plaintiff and in the misapprehension of the legal principles as to the application and the rejection disposition against the administrative agency, which affected

The plaintiff and the defendant's grounds of appeal pointing this out are with merit.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal by the plaintiff and the defendant, the judgment of the court below as to the claim for revocation of the disposition rejecting the application for permission of the entrustment of management or the permission of use on July 11, 2005 and the claim for confirmation of illegality of omission is reversed, and remanded to the court below. The remaining appeals by the plaintiff and the defendant are dismissed. It is so decided as per Disposition by

Justices Cha Han-sung (Presiding Justice)