[2] In a case where a Seoul plaza is used without permission without receiving a report on the use of the plaza and a report on the use of the plaza as prescribed by the Ordinance on the Use and Management of the Seoul plaza, whether it constitutes an unauthorized occupancy which is subject to compensation under the Public Property and Commodity Management Act (affirmative)

[3] Whether Article 10(1) [Attachment] of the Seoul Square Ordinance on the Use and Management of Public Property and Commodity Management can be applied to the calculation and imposition of the compensation for the unauthorized occupation of the Seoul Square (negative) and the method of calculating the compensation for the unauthorized occupation of the Seoul Square (negative) and the method of calculating the compensation for the unauthorized occupation of the Seoul Square

[2] Article 2 subparagraph 1 of the Seoul Square Ordinance on the Use and Management of the Seoul Square (hereinafter “Seoul Square Ordinance”) provides that “the term “use” refers to an act that restricts the free use of an unspecified number of citizens by using part or all of the Seoul Square. However, in a case where part of the Seoul Square is tangible and solidly occupied, the use of the Square by many unspecified citizens is restricted. As such, in a case where the Seoul Square used without permission without permission without receiving a report on the use of the Square and a report on the use of the Seoul Square as prescribed by the Seoul Square Ordinance, it shall be deemed that it constitutes an unauthorized occupancy which is subject to compensation under the Public Property and Commodity Management Act. In other words, the determination on whether it is an unauthorized occupancy which is subject

[3] Examining the provisions of Article 10(1) [Attachment Table] of the Seoul Square Ordinance, based on the legal nature of the Seoul Square Ordinance on the Use and Management of the Seoul Square (hereinafter “Seoul Square Ordinance”) and the legal principle as to the compensation, which set forth the standards for the use fee of the Seoul Square as a minimum using area of 50 square meters under the delegation of Article 14(2) of the Enforcement Decree of the Seoul Square Ordinance on the Public Property and Commodity Management (hereinafter “Seoul Square Ordinance”), the standards for the use fee of the Seoul Square are only applicable to the permission for use and profit of the Seoul Square or the acceptance of the report on use, and it cannot be applied to the calculation and imposition of the compensation for the illegal occupancy of the Seoul Square. The compensation for the illegal occupancy of the Seoul Square shall be calculated and imposed by applying the method of the actual unauthorized occupancy area and the rate of use of public property and commodity management under Article 22 of the Seoul Special Metropolitan City Ordinance on the delegation of Article 14(1) of the Enforcement Decree of the Public Property and Commodity Management Act.

1. Case summary and key issue

A. According to the reasoning of the lower judgment, the following facts are revealed.

1) From July 9, 2015 to July 9, 2015, the Plaintiff: (a) placed a bicycle installed with a large tent in the plaza Dong-dong of the Seoul Square (hereinafter “instant demonstration”); (b) placed the said bicycle in the site of the Seoul Special Metropolitan City Office building at night; and (c) placed in the said site after having moved the said bicycle, installed a content on the side; and (d) placed in the said site (hereinafter “the Plaintiff’s act”).

2) The instant demonstration was used as one bicycle, two large manufacturers, one small-sized container, three gambling room, one tent, and a large spacker, etc. (hereinafter “instant demonstration product”). While the Plaintiff during the instant demonstration, the area of the space in which the instant demonstration product was occupied is 1.76mm2 (=1.6m2 x 1m2), the area of the space in which the instant demonstration product was occupied is 1.76m2 (=1m2) and the area of the content installed at the time when the Plaintiff was placed is 2.76m2.

3) The Defendant determined that the Plaintiff occupied the forum of the Seoul plaza and the site for the Seoul Metropolitan Government Office building without permission through the instant act, and imposed indemnity under Article 81 of the Public Property and Commodity Management Act (hereinafter “the instant disposition”) on two occasions on the Plaintiff (hereinafter “the Public Property Act”). Among them, the Defendant did not calculate the indemnity from the occupancy without permission on the basis of “1.76 square meters of the area actually occupied by the Plaintiff,” not based on “1.76 square meters of the area actually occupied by the Plaintiff.” The Defendant assumed that the Plaintiff had received a report on the use of the plaza in accordance with the Seoul Square Ordinance on the Use and Management of the Seoul Square (hereinafter “Seoul Square Ordinance”) and calculated the usage fee of “the minimum area of the Seoul Square” to be paid by the Plaintiff in accordance with the “Standards for the Use and Management of the Square” under Article 10(1) [Attachment Table] of the Seoul Square Ordinance, and then calculated by multiplying the usage fee by 120% of the indemnity imposition rate.

The second disposition of 678,640 square meters (Seoul square) of 50 square meters from April 5, 2017 to April 9, 2017, the first disposition of the amount imposed on the area used for the use of the land on the date of disposal of the ticket contained in the main sentence, which is located in the main sentence, shall be 2,257,140 square meters of 4.52 square meters of 4.52 square meters (Seoul Metropolitan Government Government Building Site) of the second disposition of 12, July 12, 2017, from April 10 to April 28, 2017 (Seoul square) of the second disposition of 2,257,140 square meters of 4.52 square meters of 4.52 square meters (the site for the Seoul Metropolitan

B. The key issue of this case is (1) whether the Plaintiff’s act of this case constitutes “unauthorized possession,” which is subject to compensation under Article 81(1) of the Public Property Act, and (2) whether the Defendant calculated compensation, based on “the area actually occupied by the Plaintiff,” or whether the Plaintiff should be based on “the fee to be paid by the Plaintiff at that time by assuming the situation of lawful use upon receiving a report on use of the plaza in accordance with the Seoul Square Ordinance.”

2. Whether it constitutes an unauthorized occupancy under the Public Property Act (ground of appeal Nos. 1 and 3)

A. 1) The Public Property Act provides that the purpose of protecting public property and goods and promoting the appropriateness of the acquisition, maintenance, preservation, operation and disposal thereof (Article 1), and that public property shall not be used or profit from unless it complies with the procedures and methods prescribed in this Act or other Acts (Article 6(1)). In the case of administrative property, it shall be used with the approval of use or profit-making from the head of a local government and shall pay a user fee therefor (Articles 20 and 22), and the amount equivalent to 120% of a user fee shall be collected from a person who uses or profit-making from public property or occupies public property without the approval of use or profit-making (hereinafter “unauthorized occupancy”).

2) The legislative intent of such monetary sanctions is to ensure the adequate protection and management of public property provided for public purposes by preventing and blocking unauthorized occupation, while achieving the administrative objectives pursued by the local government through public property, to recover unjust enrichment corresponding to usage fees or rents, and to additionally collect punitive amounts and expand local finance (see Constitutional Court en banc Order 2016Hun-Ba374, Jul. 27, 2017).

3) In light of the contents of the aforementioned relevant provisions and the legislative intent of the indemnification system, it is reasonable to deem that, without permission for use or profit-making, any administrative property is “unauthorized possession,” which is subject to compensation under Article 81(1) of the Public Property Act, in a case where it is used, profit-making, or occupied for a specific purpose in a tangible or solid manner without permission for use or profit-making. It does not necessarily require exclusive and exclusive use, and it cannot be said that the occupied part is provided for the use of the general public at the same time (see Supreme Court Decisions 92Nu1325, May 11, 1993; 2002Da68485, Oct. 15, 2004).

B. 1) The Seoul Square Ordinance provides that a person who intends to use the Seoul Square shall submit a report on use of the Square in the attached Form stating the purpose and date of use, the name and address of the reporter, the number of expected users, the safety management plan, etc. to the Mayor of Seoul Special Metropolitan City from 90 days to 5 days before the date of use of the Square (Article 5(1)), and the Mayor of Seoul Special Metropolitan City shall, in principle, accept a report on use of the Square in a case where there is a report on use of the Square(Article 6(1). However, if there is a certain reason, the report may not be accepted after hearing the opinion of the Seoul Square(Article 6(1). If the date of use of the Square is overlapping, it may be accepted in consultation with the reporter(Article 6(2)). The Seoul Special Metropolitan City Mayor shall not discriminate against the use of the Pquare(Article 6(3)).

2) Article 20(1) and (2) of the Public Property Act provides that the head of a local government may permit administrative property to use or profit from such property within the scope not hindering its purpose or use, but in principle, a general tender shall be held. However, in cases prescribed by Presidential Decree where it is deemed necessary in view of the purpose, nature, etc. of the permission (Article 1) and prescribed by Presidential Decree (Article 13(3) of the Enforcement Decree of the Public Property and Commodity Management Act (hereinafter “Enforcement Decree of the Public Property Act”) lists cases where the head of a local government can permit the use or profit from administrative property by means of multiple methods.

In addition, the management of public property constitutes autonomous affairs of the local government [Article 9 (2) 1 (i) of the Local Autonomy Act], and ordinances may be enacted within the scope of statutes, even if there is no delegation of superior laws or regulations except for the matters concerning the restriction of rights or the imposition of obligations of residents or penal provisions (Article 22 of the Local Autonomy Act).

In full view of these relevant provisions, permitting the head of a local government to use and benefit from administrative property in a number of ways pursuant to Article 20(1) and (2) of the Public Property Act constitutes an act of discretion, and if the public property law does not stipulate specific standards for exercising discretionary power, it is allowed to set specific standards for exercising discretionary power as to permission to use and benefit from administrative property within the scope of statutes.

3) In full view of the contents of the above provisions and the relevant legal principles and the fact that the public property laws and regulations do not delegate the establishment of legal forms other than the permission for use and profit-making of administrative property to ordinances, etc., the act of the Mayor of Seoul Special Metropolitan City accepting a report on use of the plaza pursuant to Article 6 of the Seoul Scenic Ordinance constitutes a case where the use and profit-making of the Seoul Scenic, which is administrative property, is not a general bidding method, but a case where the use and profit-making of the public property is permitted by a number of methods as prescribed by Article 20(2) of the Public Property Act. Article 6(1) proviso, (2), and (3) of the Seoul S

4) Article 2 subparag. 1 of the Seoul Square Ordinance provides that "use" refers to an act that restricts the free use of a forum by many unspecified citizens by using all or part of the Seoul Square. However, in a case where a part of the Seoul Square is tangible or solidly occupied, the use of the plaza by many unspecified citizens is restricted. Therefore, if the Seoul Square used without permission without permission without receiving a report on use of the plaza and a report on use by the Seoul Square as prescribed by the Seoul Square Ordinance, it shall be deemed that it constitutes an unauthorized occupancy that is subject to compensation under the Public Property Act. In other words, the determination on whether it is an unauthorized occupancy that is subject to compensation in accordance with the definition of the Seoul Squ

C. Examining the above facts in light of the aforementioned legal principles, it is reasonable to view that the Plaintiff’s act of this case constitutes an illegal possession, which is subject to compensation under Article 81(1) of the Public Property Act, in a case where part of the Seoul Square and part of the Seoul Square are used or occupied in a tangible or historical manner without the Defendant’s permission for use, profit-making, or reporting on use

1) The Plaintiff has placed the instant demonstration goods and content in the Seoul Square or Seoul Office building site for a considerable period of time, thereby continuously occupying and using a specific space. Although the instant demonstration goods and content are portable facilities, it was impossible to use or pass over the space occupied by others. Such an act by the Plaintiff is not the same as those of the users of the Seoul Square, etc., who temporarily keep the goods, and it is clearly distinguishable from the general use in the form that the Seoul Square, etc. passes along the Seoul Square, etc. or remains for the purpose of making good use of leisure time.

2) The Seoul Square users, including Seoul Square, were allowed to pass through bypassing the goods of the instant demonstration or the contents of the instant demonstration, and the Plaintiff transferred the goods of the instant demonstration to other events, etc. However, since unauthorized possession as the object of the instant demonstration is not necessarily required to be exclusive and exclusive, it cannot be evaluated that the Plaintiff’s act of using a specific space as a tangible and solid basis does not constitute “Possession.”

3) The freedom of assembly and demonstration is guaranteed, or the purpose of the demonstration is for the public interest, does not justify the possession and use of another person’s property without the authority, or does not exempt the payment of the price for possession and use of such property. The same holds true even in cases of public property. Even if an assembly and demonstration itself is lawful in accordance with the procedures prescribed by the Assembly and Demonstration Act, if the assembly and demonstration occupied public property without permission, it may be subject to compensation under the Public Property Act if the assembly and demonstration took place without permission. Furthermore, it cannot be deemed that the provision on the collection of indemnity does not differ from cases where the assembly and demonstration occupied without permission for public interest or for the purpose of the public interest under Article 81(1) of the Public Property Act, and where it occupied without permission for the purpose of the pursuit of private interest (see Constitutional Court en banc Decision 2016Hun-Ba374, Jul.

4) If one person’s demonstration is ordinarily conducted in the form of a ticket or a signboard with a sign, it is difficult to view a specific space as a tangible and solid possession. However, the demonstration of this case goes beyond the extent of the expression means ordinarily capable of one person’s demonstration in light of the type, volume, weight, method of demonstration, etc. of the demonstration product. The demonstration of this case’s demonstration of this case’s demonstration of this case’s demonstration of this case’s demonstration of this case’s demonstration of this case’s demonstration of one person’s own nature or necessary measures for one person’s demonstration of this case’s demonstration of this case’s demonstration of this case’s demonstration of this case’s demonstration of this case’s demonstration of this case’s demonstration of this case’s

D. The court below determined that the Plaintiff’s act of this case constitutes an unauthorized possession, which is subject to the compensation under Article 81(1) of the Public Property Act. The judgment below is based on the legal principles as seen earlier, and there is no error of law by misunderstanding the legal principles as to the requirements for imposition of compensation under the Public Property Act,

3. Unauthorized occupancy area, which serves as the basis for calculating indemnity (ground of appeal No. 2)

A. 1) As seen earlier, the imposition of indemnities under the Public Property Act constitutes administrative sanctions to recover unjust enrichment corresponding to usage fees or rents from a person who occupies public property without permission and additionally collect punitive amounts (see Constitutional Court en banc Decision 2016Hun-Ba374, Jul. 27, 2017).

2) The principle of proportionality is the basic constitutional principle naturally derived from the principle of a constitutional state (see Constitutional Court en banc Decision 92Hun-Ga8, Dec. 24, 1992). The means to achieve administrative objectives should be effective and appropriate for the accomplishment of the objectives, and should, as much as possible, lead to the minimum infringement. In addition, the introduction of the means should not be capable of the public interest in which the infringement is intended (see Supreme Court Decision 96Nu1096, Sept. 26, 1997). In particular, in the case of a disciplinary measure on the grounds of the breach of duty by the party to the disposition, even though it is not strictly between the contents of the breach of duty and the determination of the sanctions, it should be recognized as proportionate relation, and in a case where the disciplinary measure on the grounds of the excessive violation of duty has considerably lost validity by social norms, it constitutes deviation and abuse of discretionary power (see Supreme Court Decision 2007Du9796, Jul. 19, 2007).

B. 1) The main text of Article 81(1) of the Public Property Act provides that an amount equivalent to 120/100 of the usage fees or rent of public property or goods shall be collected from a person who occupies it without permission, as prescribed by Presidential Decree. The main text of Article 81(1) of the Enforcement Decree of the Public Property Act provides that an indemnity under Article 81 of the Act shall be the amount equivalent to 120/100 of the total amount of usage fees or rent calculated pursuant to Articles 14 and 31 for each fiscal year for the period during which the person occupies the property without permission, or uses or benefits from the property without permission.

2) Meanwhile, Article 22(1) of the Public Property Act provides that when the head of a local government permits the use or profit-making of administrative property, he/she shall collect user fees each year in accordance with the rate and calculation method prescribed by Presidential Decree. Article 14(1) of the Enforcement Decree of the Public Property Act based on delegation provides that annual user fees under Article 22(1) of the Act shall be determined by ordinances of the local government within the scope of at least 10/1,000 per annum, which reflects the market price of the pertinent property, may be calculated on a monthly or daily basis, and Article 22(2) of the same Act provides that the head of the local government may determine user fees for each time or number of times, as prescribed by municipal ordinances of the relevant local government, if deemed particularly necessary for the efficient management

3) Examining the contents and structure of the provisions of the Public Property Act and the Public Property Act on the criteria for calculating usage fees and indemnities based on the nature as administrative sanctions of the disposition imposing indemnity as well as the proportionality, the legislators of the public Property Act and subordinate statutes clearly stipulate that the amount of usage fees shall be calculated by calculating the amount of usage fees by the unit of area of the relevant public property 】 the amount of usage fees 】 the rate of usage determined by municipal ordinance within the extent of not less than 10/1,000 per annum 】 (i.e., the rate of usage determined by municipal ordinance within the extent of not less than 10/1,000 per annum). However, in the case of indemnification, it is clearly prescribed that the amount of indemnity should be calculated by calculating the amount of unauthorized occupancy 】 the amount of appraisal by the unit of area of the relevant public property 】 the amount of usage fees x the rate of usage without permission x the rate

C. 1) According to the delegation of Article 14(2) of the Enforcement Decree of the Public Property Act, Article 10(1) [Attachment] of the Seoul Square Ordinance provides for the criteria for the use fee of the Square in Seoul Square with a minimum of at least 500 square meters. Specific details are as follows (Article 9 [Attachment] of the Enforcement Rule of the Seoul Square Ordinance on the Use and Management of Square) (Article 9 [Attachment] of the Enforcement Rule of the Seoul Square also provides that the “standards for the use fee of the Square” is the same as the “standards for the use fee of the Square” in [Attachment] of the Seoul Square Ordinance

The usage fees of non-use fees of one kilometer for 12,00 square meters and the basic usage fees of 10 square meters and 10 square meters for each square, 2,000 square meters or 10,000 square meters or more per square, 500 square meters or more per 5,200 square, 2,000 square meters or more per 2,000 square, 2,000 square, 2,000 square or more per 5,449 square or more, 2,00 or more per 449 square, 10,000 or more per 13,207 square, 264,000 square meters per square, which are included in the main sentence, shall be accepted only for 3,000 square meters and 10,000 square meters per square, and the basic usage fees of 10,000 square meters or more per 500 square meters shall be added to 3,000 hours or more per 20 hours per square (including 3:10,20 hours or more per 20.).

2) Examining the contents of the criteria for the use fee of the Seoul plaza based on the legal nature of the Seoul plaza Ordinance and the legal principles as to the compensation, the criteria for the use fee of the Seoul plaza are limited to the base date applied to the permission for use and profit of the Seoul plaza or the acceptance of the report on use, and it is not applicable to the calculation and imposition of the compensation for the illegal occupancy of the Seoul plaza. As seen earlier, the compensation for the illegal occupancy of the Seoul plaza shall be calculated and imposed by applying the usage rate as prescribed in Article 22 of the Seoul Metropolitan Government Ordinance on the Management of Public Property and Commodity (hereinafter “Seoul City Ordinance”) according to the formula of the “unauthorized occupancy area 】 the appraised price by unit of the relevant public property 】 the unauthorized occupancy period 】 annual use rate 】 120% 】 the actual unauthorized occupancy area and the delegation of Article 14(1) of the Enforcement Decree of the Public Property Act.

A) The usage fee standard of the Seoul plaza is basically determined by the time and frequency for the efficient management of the Seoul plaza, taking into account the characteristics of the Seoul plaza as delegated by Article 14(2) of the Enforcement Decree of the Public Property Act. In addition, considering the fact that Article 6 of the Seoul plaza Ordinance was established to set specific standards for permission for use and profit-making of the Seoul plaza and to restrict the discretion of the Mayor of Seoul Special Metropolitan City, it is understood to the purport that the “minimum used area of 500 square meters” among the criteria for the use fee of the Seoul plaza is to prevent the use and profit-making of the Seoul plaza from permitting a small-scale event in consideration of the characteristics of the Seoul plaza. As such, the usage fee standard of the Seoul plaza is only a provision for permission for use and profit-making of the Seoul plaza or acceptance of the report on use,

B) The Seoul plaza usage fee standard is set based on the premise that the Seoul plaza is legitimately used through the process of accepting the permission for use or profit-making of the Seoul plaza or the process of accepting the report on use. In this case, only acceptance is made for the report on use with a minimum area of at least 500 square meters, and where a report on use with a minimum area of at least 500 square meters is made, the Defendant is requested to supplement a report with a minimum of at least 500 square meters. As such, the user fee is imposed in proportion to the “area for which the permission for use or profit-making or the report on use is accepted” (hereinafter “permitted area”). However, in the case of unauthorized occupancy, the Seoul plaza usage fee standard based on the premise of the permitted area cannot be applied

C) Upon receipt of a report on the use of the Seoul plaza, the right to use the space corresponding to the permitted area is recognized as a specific purpose in a tangible and historical manner for a certain period of time. Thus, even if the user did not actually use the permitted area, it can be deemed that the user occupied and used the area. In particular, according to the Seoul plaza usage fee standard, the Defendant, in principle, accepts only one report for each plaza. In addition, in the event there is an unauthorized occupant or facility that interferes with the use of the plaza, the Defendant, who is the administrative agency having the right to manage the Seoul plaza, may request the Defendant, who is the administrative agency having the right to manage the plaza, to remove the relevant facility or take necessary measures, thereby protecting public authority. Since the unauthorized occupant is not protected by such public authority, it cannot be deemed that the usage fee to be paid by the person who has lawfully obtained the permission for use and profit-making with respect to the minimum used area of 500 square meters, it does not violate the principle of equity on the sole basis of the fact that the user is liable to pay indemnity.

D) On the other hand, given that an indemnity is a punitive measure against an illegal occupant of public property, it should be calculated and imposed in proportion to the content and degree of the breach of duty. In the event that an indemnity is calculated and imposed by applying the minimum standard of 500 square meters of land to be used, the indemnity may be imposed even on the area in which the illegal occupant has not actually occupied. Accordingly, in such a case, the indemnity may be imposed on a few times of the area occupied without permission (in the case of the Plaintiff, approximately 284 square meters = 500 square meters of land / 1.76 square meters of land actually occupied) and thus, an excessive sanction may be caused compared to the degree of the breach of duty

E) It is difficult to deem that there is a decrease in the amount of indemnities because the amount of indemnities is not only the amount of indemnities, but it is difficult to deem that there is a decrease in the increase in the amount of indemnities. A person who uses or benefits from administrative property without following the procedures and methods prescribed by the Public Property Act may be punished by imprisonment for not more than two years or by a fine not exceeding 20 million won (Article 99 of the Public Property Act). In a case where a person occupies public property or installs facilities on public property without justifiable grounds, he/she may be subject to an order for restoration or removal of facilities, and administrative vicarious execution may be conducted if he/she fails to comply therewith (Article 83 of the Public Property Act and Article 12 of the Seoul Square Ordinance). Therefore, even if the indemnity calculated based on the “area of actual occupied without permission” is less than the “user without permission calculated based on the circumstances of lawful use or profit-making with the permission of use or profit-making under the Public Property Act, it is difficult to conclude that it would cause an increase in the amount of indemnities to be imposed by the legislative policy that does not clearly justified.

F) The criteria for the usage fee of the Seoul plaza are set differently from the usage rate of general administrative property, namely, the usage rate under Article 22 of the Seoul Metropolitan Government Ordinance on Public Property, by presenting a case where the use of a plaza is at least 500 square meters is used via acceptance of a report on the use of a plaza as prescribed by the Seoul plaza Ordinance. Therefore, in a case where the Seoul plaza is calculated and imposed on a person who occupied the plaza without permission without permission without acceptance of a report on the use of a plaza as prescribed by the Seoul plaza Ordinance, in principle, the usage rate under Article 22 of the Seoul Metropolitan Government Ordinance on

D. Examining the aforementioned facts in light of the aforementioned legal principles, with respect to the Plaintiff who occupied the Seoul square without permission, the amount of indemnity shall be calculated and imposed by applying the formula of “1.76 square meters of the area occupied without permission” under the Public Property Act 】 the assessed price by unit of the area of the relevant public property 】 the period of occupation without permission 】 annual rate of use 】 120%” and the rate of use prescribed under Article 22 of the Seoul Metropolitan Government Ordinance on Public Property. The minimum amount of 500 square meters of the area used without permission shall be deemed as the area occupied without permission, and the indemnity shall not be calculated and imposed by multiplying the rate of use and the rate of imposition of indemnity set forth in the Seoul square fee standard by 120%.

Nevertheless, the lower court determined that the Plaintiff should calculate and impose indemnity by applying the Seoul Square usage fee standard as it is. In so determining, the lower court erred by misapprehending the legal doctrine on the criteria for calculating indemnity under the Public Property Act and the standards for fees for Seoul Square, thereby adversely affecting the conclusion of the judgment.

4. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Noh Jeong-hee (Presiding Justice)