[2] Requirements for imposing farmland preservation charges

[3] Whether “farmland” under the Farmland Act constitutes “farmland” under the Farmland Act in a case where a farmland which was a “farmland” is unlawfully diverted without permission, etc. for diversion of farmland and is actually used for another purpose (affirmative)

[4] The scope of authorization, permission, etc. under Article 96(1) and (3) of the former Aviation Act where the person authorized to approve the implementation plan of the airport development project establishes or approves the implementation plan

[2] According to Article 38(1), (4), (5), and (7) of the Farmland Act, and Article 53 of the former Enforcement Decree of the Farmland Act (amended by Presidential Decree No. 24455, Mar. 23, 2013) (amended by Presidential Decree No. 24455, Mar. 23, 2013), a person who intends to divert farmland after undergoing procedures for permission, consultation, and reporting on diversion of farmland shall pay farmland preservation charges calculated in proportion to the area for exclusive use by the date prior to permission, reporting on diversion of farmland (including where permission, reporting on diversion of farmland is deemed granted pursuant to other Acts). Once farmland preservation charges have been paid but permission has not been revoked or permission has not been granted, farmland preservation charges corresponding thereto shall be refunded if the area of farmland to be diverted has

Therefore, in order to impose farmland preservation charges, land to be used should be subject to the procedures for permission, consultation, and reporting on farmland diversion under the Farmland Act, and farmland preservation charges should, in principle, be calculated and imposed on the basis of the area of farmland diversion before permission and reporting on farmland diversion.

[3] The former part of Article 2 subparag. 1(a) of the Farmland Act defines “farmland” as “farmland”. Meanwhile, Article 42(1) and (2) of the Farmland Act stipulates that where farmland is diverted or used for any other purpose without permission, etc. for diversion of farmland, the competent agency may order the person who performed the act to restore the farmland to its original state by providing that the competent agency may restore the farmland to its original state by vicarious execution if the farmland is unlawfully diverted to its original state without any permission for diversion of farmland, etc.

Therefore, whether certain land is "farmland" under the former part of Article 2 subparagraph 1 (a) of the Farmland Act shall be determined according to the actual phenomenon of the land regardless of the land category in the public record, but if the land which was "farmland" under the Farmland Act is actually used for another purpose and should be restored to its original state as farmland because it is unlawfully converted into farmland without obtaining permission, etc. for diversion of farmland, such change is merely temporary, and it still constitutes "farmland" under the Farmland Act.

[4] Article 96(1) and (3) of the former Aviation Act (amended by Act No. 655 of Feb. 4, 2002) provide that when the Minister of Construction and Transportation intends to establish or approve an execution plan for an airport development project, he shall consult in advance with the head of the competent administrative agency as to whether it conforms to the relevant laws and regulations under each subparagraph of paragraph (1). When the Minister of Construction and Transportation establishes or approves an implementation plan for an airport development project, he shall be deemed to have obtained the approval under each subparagraph of paragraph (1). Article 96(1)9 of the former Aviation Act provides that "the permission for or consultation on conversion of farmland under

In addition, considering the language, content, and form of these regulations, the legislative purpose of simplification of administrative procedures by integrating windows for the smooth implementation of the intended project and the purport of excluding examination as to whether the intended project satisfies the substantive requirements of authorization and permission under the related Acts and subordinate statutes, it should be deemed that the authorization and permission, etc. is deemed to be deemed to be deemed to be deemed to have been deemed to have been deemed to have been granted only when the person having the authority to approve the implementation plan of the

1. As to the Plaintiff’s ground of appeal

A. Unless otherwise specifically provided for in other Acts, an appeal litigation shall, in principle, be filed against an administrative agency externally taking an administrative disposition which is the subject of the lawsuit (main sentence of Article 13(1) of the Administrative Litigation Act): Provided, That where an agency indicates an agency relationship and takes an administrative disposition on behalf of the agency, the agency shall be the defendant (see Supreme Court Order 2005Da4, Feb. 23, 2006).

B. Articles 38(1), 38(1) and (13), and 51(3) of the Farmland Act, Article 47(1), 48(1) and (2), and 49(1) of the former Enforcement Decree of the Farmland Act (amended by Presidential Decree No. 24455, Mar. 23, 2013); Articles 40 and 41(1) of the Enforcement Rule of the Farmland Act; and Articles 41(1) of the Enforcement Rule of the Farmland Act provide that when the competent agency having the right to impose and decide farmland preservation charges decides to impose farmland preservation charges, the Korea Rural Community Corporation entrusted with the affairs of receiving farmland preservation charges by proxy, along with relevant documents, shall notify the Korea Rural Community Corporation entrusted with the affairs of collecting farmland preservation charges; and the Korea Rural Community Corporation shall send a notice of payment of farmland preservation charges to the person obligated to pay farmland preservation charges in accordance with the notification. In addition, subparagraphs 32 and 34 of the Enforcement Rule of the Farmland Act provide that the person liable for payment of farmland preservation charges shall be named “the Korea Rural Community Corporation”.

C. The reasoning of the first instance judgment cited by the lower judgment reveals the following: ① on May 12, 2016, the Minister of Agriculture, Food and Rural Affairs notified the Plaintiff of the farmland preservation charges imposed on the Plaintiff as farmland preservation charges of KRW 16,738,682,670 on the farmland preservation area as of the approval date of the implementation plan for the public golf course development project for Kimpo Airport (hereinafter “instant project”); ② on June 20, 2016, specifying that the Defendant Korea Rural Community Corporation was the Defendant Korea Rural Community Corporation as an agent of the Minister of Agriculture, Food and Rural Affairs, who is the person entitled to the determination on the imposition of farmland preservation charges, stating that “the Defendant Rural Community Corporation is the agent of the Minister of Agriculture, Food and Rural Affairs, who is the person entitled to the determination on the imposition of farmland preservation charges,” the payment period of farmland preservation charges to be “by July 20, 2016,” and ③ the Plaintiff, upon filing the instant lawsuit seeking partial revocation of the farmland preservation charges.

D. Examining these facts in light of the relevant statutes and legal principles as seen earlier, the Minister of Agriculture, Food and Rural Affairs, on May 12, 2016, delivered the notification of payment from June 20, 2016 to the Plaintiff by Defendant Korea Rural Community Corporation, which was an agent in charge of receiving farmland preservation charges, to the Plaintiff on June 20, 2016 (see Supreme Court Decision 2015Du36331, Apr. 13, 2017). Furthermore, insofar as the Minister of Agriculture, Food and Rural Affairs clearly expresses that Defendant Korea Rural Community Corporation issued the said notification in the position of “Defendant’s agent,” Defendant Korea Rural Community Corporation was an administrative agency that externally conducted the disposition of imposition of farmland preservation charges in the instant case under its name, and Defendant Korea Rural Community Corporation, which is merely a mere agent, shall not become the Defendant.

E. In the same purport, the lower court determined that the part of the instant lawsuit against the Defendant Korea Rural Community Corporation against a non-qualified person was unlawful, as it was based on the legal doctrine as seen earlier. In so doing, the lower court did not err by misapprehending the legal doctrine on the person entitled to decide on the imposition of farmland preservation charges and the eligibility for the defendant in an appeal litigation

2. As to Defendant Ministry of Agriculture, Food and Rural Affairs’ ground of appeal

A. (1) According to Article 38(1), (4), (5), and (7) of the Farmland Act, and Article 53 of the Enforcement Decree of the Farmland Act, a person who intends to divert farmland after having gone through the procedures for permission, consultation, or reporting on diversion of farmland shall pay farmland preservation charges calculated in proportion to the area for exclusive use by the time prior to permission, reporting on diversion of farmland (including where permission, reporting on diversion of farmland is deemed granted pursuant to other Acts). On the other hand, farmland preservation charges should be refunded if permission has been revoked or permission has not been granted after having been paid farmland preservation charges, or where the area of farmland to be diverted has been reduced compared to the original area for reasons corresponding thereto.

Therefore, in order to impose farmland preservation charges, land to be used should be subject to the procedures for permission, consultation, and reporting on farmland diversion under the Farmland Act, and farmland preservation charges should, in principle, be calculated and imposed on the basis of the area of farmland diversion before permission and reporting on farmland diversion.

(2) The former part of Article 2 Subparag. 1(a) of the Farmland Act defines “farmland” as “farmland”. Meanwhile, Article 42(1) and (2) of the Farmland Act explicitly provides that where farmland is diverted or used for any other purpose without permission, etc. for diversion of farmland, the competent agency may order the person who committed the act to restore the farmland to its original state by providing that the competent agency may restore the farmland to its original state by vicarious execution if the farmland is unlawfully diverted to its original state without any permission for diversion of farmland, etc.

Therefore, whether certain land is "farmland" under the former part of Article 2 subparagraph 1 (a) of the Farmland Act shall be determined according to the actual phenomenon of the land regardless of the land category in the public record, but even if the land which was "farmland" under the Farmland Act is actually used for another purpose, if it is necessary to restore it to the original state as farmland because it is converted for illegal use without obtaining permission, etc. for diversion of farmland, such change is merely temporary, and it still constitutes "farmland" under the Farmland Act (see Supreme Court Decision 2006Du8235, May 31, 2007).

(3) Article 96(1) and (3) of the former Aviation Act (amended by Act No. 655 of Feb. 4, 2002; hereinafter the same) stipulates that when the Minister of Construction and Transportation intends to establish or approve an implementation plan for an airport development project, he shall consult with the head of the competent administrative agency in advance about whether the implementation plan for an airport development project is in conformity with the relevant Acts and subordinate statutes under each subparagraph of paragraph (1). If the Minister of Construction and Transportation establishes or approves the implementation plan for an airport development project, he shall be deemed to have obtained the approval under each subparagraph of paragraph (1). Article 96(1)9 of the former Aviation Act provides that “the permission

In addition, considering the language, content and form of these provisions, the legal fiction system of authorization and permission is not intended to simplify administrative procedures by simplification of windows for the smooth implementation of the intended project, and it is not intended to exclude the examination on whether the intended project satisfies the substantive requirements of authorization and permission under the relevant Acts and subordinate statutes, it should be deemed that the authorization and permission, etc. is deemed to be deemed to be deemed to be deemed to have been deemed to have been deemed to have been deemed to have been granted only for the matters consulted in advance with the relevant administrative agency (see Supreme Court Decisions 2007Du4773, Feb. 12, 2009; 2009Du16305, Feb. 29, 2012, etc.).

B. Review of the reasoning of the first instance judgment cited by the lower court reveals the following circumstances.

(1) On July 18, 200, the Commissioner of the Seoul Regional Aviation Administration approved the implementation plan for the project to create a buffer green belt for the Giman Airport (hereinafter “PP”) to the Korea Airport Corporation. Before such approval, he/she did not request the administrative agency having jurisdiction over the farmland diversion permission and the agency having jurisdiction over the farmland diversion permission and the agency having jurisdiction over the project area (the total number of 361 parcels listed in the annexed Table 1 of the judgment of the first instance, excluding the land No. 65, 74 per annum; hereinafter “instant land”).

(2) The Korea Airports Corporation, a public corporation that succeeded to the Korea Airport Corporation and manages and operates the Kimpo Airport, completed the preceding projects around February 2008, and received a certificate of completion inspection from the Seoul Regional Aviation Administration on March 4, 2008. The Korea Airports Corporation ceased to lease the instant land to neighboring farmers around the end of 2007, and accordingly, suspended farming on the instant land from 2008.

(3) After that, the Korea Airports Corporation, the competent cadastral authority, filed an application for land category change with the head of Gangseo-gu Seoul Special Metropolitan City, which applied for land category change with a total of 572 parcels of land in the project area including the instant land, including the land in question, to change the land category into a miscellaneous land. The head of Gangseo-gu Seoul Metropolitan Government accepted the above application on December 26, 2008 and completed land category change registration. Accordingly, the land category of the instant land was changed from the previous “Bong-gu” to the “miscellaneous land.”

(4) As above, the Plaintiff is an implementer of the business that created and utilizes a golf course in the buffer green belt of Kimpo Airport (hereinafter “instant business”). The Seoul Regional Aviation Administration consulted with the Defendant Minister of Agriculture, Food and Rural Affairs with respect to the diversion of the total of 747,647 square meters of farmland within the instant business area including the instant land, and subsequently, on May 19, 2016, issued the approval of the execution plan of the instant business to the Plaintiff.

(5) On June 20, 2016, the Minister of Agriculture, Food and Rural Affairs imposed the instant farmland preservation charges on the Plaintiff following the said farmland diversion consultation.

C. Examining these circumstances in light of the relevant laws and regulations and legal principles as seen earlier, the following can be determined as follows.

(1) On July 18, 200, the Commissioner of the Seoul Regional Aviation Administration did not undergo prior consultation with the administrative agency having jurisdiction over permission on farmland diversion under the Farmland Act prior to the approval of the prior project execution plan, and the procedure related to the farmland diversion of the pertinent land. Therefore, it cannot be deemed that the legal fiction of permission on farmland diversion under Article 96(1)9 of the former Aviation Act has become effective according to the approval of the prior project execution plan.

(2) Even if the instant land was changed to the buffer green belt belt in the Gimpo Airport around 2008 due to the implementation of the preceding business, since it was illegally converted without obtaining permission, etc. to divert farmland, it should be restored to the original state as farmland, and the state of the “buffer green belt” is merely temporary. Therefore, as of May 19, 2016, the instant land still falls under the “farmland” under the Farmland Act as at the time of approval of the implementation plan of the instant business.

D. Nevertheless, the lower court determined otherwise by the Commissioner of the Seoul Regional Aviation Administration that even if it did not go through the consultation procedure with the administrative agency having jurisdiction over the permission to divert farmland under the Farmland Act prior to the approval of the prior project execution plan, the legal fiction of permission to divert farmland under Article 96 (1) 9 of the former Aviation Act was effective according to the approval of the prior project execution plan, and determined that the land in this case was legally converted into a buffer green belt according to the permission to divert farmland, and thus, was not “farmland” under the Farmland Act. In so doing, the lower court erred by misapprehending the legal doctrine on the concept of farmland under the Farmland Act and the interpretation of the legal fiction of permission under Article 96 (1) of the former Aviation Act, which affected the conclusion of the judgment. The allegation contained in the grounds of appeal on this point is with merit.

3. Conclusion

The part of the judgment of the court below against the defendant Ministry of Agriculture, Food and Rural Affairs regarding the land of this case is reversed, and that part of the case is remanded to the court below for a new trial and determination. The plaintiff's appeal is dismissed, and the costs of appeal between the plaintiff and the defendant Korea Rural Community Corporation are assessed against the plaintiff who has lost.

Justices Cho Jae-chul (Presiding Justice)