2. The Defendant’s disposition of disuse of real estate indicated in the separate sheet on February 15, 2013 is invalid.

3. One-half of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

(a) Status of a party;

1) The Plaintiff, as an operator of the Soci-Sei-Saei-Seong Soci-ri, Seocheon-gun, Seocheon-gun, Jeoncheon-gun, is operating a skiing ground, etc. in the business site that includes the real estate indicated in the attached Table (hereinafter “State-owned land of this case”).

2) The Defendant is the office of general administration of the Republic of Korea under the jurisdiction of the Republic of Korea, which exercises overall control and administration of State property pursuant to Article 2 subparag. 10 and Article 8 of the former State Property Act (amended by Act No. 14841, Aug. 9, 2017).

B. Legal status of the State-owned land of this case

1) The instant state-owned land is a group of land in which permission for use and loan agreements have been made together, as seen below. The Administrator of the Korea Forest Service classified and managed the instant state-owned land as a state-owned land that needs to be preserved at least 100,000 meters.

2) On February 1, 1975, the State-owned land in this case was designated as the Seosan National Park. The land in mountain 62-4 is designated as a park village district (collective facility district in a park), park natural environment district in a park, mountain 62-5 land as a village district in a park (collective facility district in a park), park nature conservation district, park natural environment district, mountain 109-7 land as a park nature conservation district, park natural environment district, park natural environment district, park natural environment district, and land in mountain 1293-8 as a park nature conservation district, park natural environment district, and park natural environment district. The Plaintiff’s skiing ground facilities are designated as a skiing ground facility among sports facilities under the

C. The Plaintiff’s use of the State-owned land

1) On November 20, 1990, the Plaintiff (formerly: Ulsan Development Co., Ltd.) obtained permission to use state forests of size of 5,607,304m2 located in 5,000, Seocheon-gun, Seocheon-gun, Chungcheongnam-do, Seoul Special Metropolitan City, the President of the Korea Forest Service under the Korea Forest Service, for the use of state forests of size of 62 5,607,304m2, including the instant state-owned land, as part of the skiing site,

2) On June 2, 2009, the Plaintiff obtained permission for the use of the State-owned land of this case from the head of the Seo-gu Regional Forest Administration Office for the purpose of obtaining permission for the use of 2,269,501 meters among the total area of the State-owned land of this case for the purpose of using infrastructure, from June 13, 2009 to June 12, 2014, with the usage fee of 243,911,960 won annually.

D. Defendant’s disuse

1) On January 21, 2013, the Defendant requested that the Minister of the Korea Forest Service disuse to the effect that “the State-owned land in the instant case is utilized as sports facilities, and it is inappropriate for the Administrator of the Korea Forest Service to manage it as administrative property.” The Defendant demanded that the State-owned land be converted into general property for efficient management or disposal of State-owned property

2) On February 4, 2013, the Minister of the Korea Forest Service rejected the use of the State-owned land in this case on the ground that “the Defendant maintained, operates, and manages a forest form.” As such, it is easy to restore the State-owned land to a forest at the time of termination of the use in the future, and in the future, it is necessary to restore it to a forest and continue to be managed as a state-owned forest.” 3) On February 15, 2013, the Defendant issued the disposition of disuse ex officio (hereinafter referred to as the “disposition in this case’s disuse”). On February 15, 2013, the Defendant transferred the State-owned land in this case from the Minister of the Korea Forest Service, and entrusted the Korea Asset Management Corporation with the management and disposal of the State-owned land in this case (hereinafter referred to as the “instant entrustment”).

E. Conclusion of loan agreements and payment of loan charges with the Plaintiff and Korea Asset Management Corporation

1) On May 23, 2013, the Korea Asset Management Corporation, as an entrusted institution of the Republic of Korea, concluded a loan agreement with the Plaintiff and the instant State-owned land, with the content that the purpose of use shall be determined as a sports site (ski ground) and a loan period from June 13, 2013 to June 12, 2014 (the end of the previous period of use permission) and the loan amount shall be KRW 575,603,790 (value-added tax separate) and the loan amount shall be determined by the State Property Act.

2) On June 13, 2014, the Korea Asset Management Corporation, as an entrusted institution of the borrower, concluded a loan agreement with the content that the purpose of use for the State-owned land of the Plaintiff and the instant State-owned land was determined as sports site (ski ground) and the loan period from June 13, 2014 to June 12, 2019, and the lease fee was determined as KRW 2,496,451,100 per year (excluding value-added tax) and the lease fee for the following year was determined annually pursuant to Articles 29 and 31 of the Enforcement Decree of the State Property Act (hereinafter “the instant loan agreement”).

3) According to the instant loan agreement, the Plaintiff paid the loan fee of KRW 2,746,096,210 (including value-added tax; hereinafter “first loan”) to the Korea Asset Management Corporation from June 13, 2014 to June 12, 2015. On June 15, 2015, the Republic of Korea and the Korea Asset Management Corporation made a deposit as the principal deposit for the loan fee of KRW 2,808,50 (including value-added tax; hereinafter “second loan”) from June 13, 2015 to June 12, 2016. Meanwhile, the Korea Asset Management Corporation received the deposit money on June 24, 2015 with the consent of the Republic of Korea.

4) On June 13, 2016, the Plaintiff deposited the repayment deposit (hereinafter “the instant repayment deposit”) with the Korea Asset Management Corporation (hereinafter “Korea Asset Management Corporation”) from June 13, 2016 to June 12, 2017, on the ground that it is impossible to identify who is a creditor from among the Korea Asset Management Corporation or the Korea Asset Management Corporation, and with the Korea Asset Management Corporation as a depositor, from June 13, 2016 to June 12, 2017. However, the Korea Asset Management Corporation and Korea did not accept the said deposit.

F. Progress of the lawsuit filed by the Plaintiff for return of unjust enrichment

1) The Plaintiff filed a lawsuit with the Seoul Central District Court seeking return of unjust enrichment equivalent to the first rent on the premise that the instant loan agreement was null and void or revoked. On October 23, 2015, the said court rendered a judgment dismissing the Plaintiff’s claim on the ground that “The instant disuse disposition was invalidated as it ceased to use the State-owned land in general property without taking any measures, such as cancellation of the national park zone, despite the fact that the instant disuse disposition was an administrative property as a national park zone. Therefore, the instant loan agreement, which is a private loan for administrative property, cannot be deemed null and void, or the Korea Asset Management Corporation, which is a mere entrusted institution of the Republic of Korea, shall not be deemed to have obtained a profit equivalent to the rent (No. 2014Gahap543700). However, the said court appealed to the Seoul High Court on May 12, 2016 (No. 2015Na2061796). Accordingly, the Plaintiff filed a final appeal with the Supreme Court and the said judgment became final and conclusive on June 1, 2016.

2) The Plaintiff filed a lawsuit with the Seoul Central District Court as the primary defendant and with the Korea Asset Management Corporation as the primary defendant seeking the return of unjust enrichment equivalent to part of the first loan charges, part of the second loan charges, and the amount of the deposit for repayment of this case on the premise that the loan contract of this case was null or void. The above court ruled that the disposition of this case and the loan contract of this case are null and void for the same reasons as the preceding judgment rendered on March 31, 2017. On the ground that the Republic of Korea, which is not the Korea Asset Management Corporation, bears the duty to return unjust enrichment equivalent to the loan charges to the Plaintiff, and the Republic of Korea did not acquire unjust enrichment on the ground that the deposit of this case was null and void as repayment, the first loan charges of this case against the Republic of Korea, the second loan charges of this case, and the second loan charges of this case against the Republic of Korea (the second 6th 20th 16th 201 and the second 20th 26th 2017.).

[Ground of recognition] Facts without dispute, Gap evidence 1 through 15, 19 through 21, Eul evidence 4 through 7 (including each number), the purport of the whole pleadings

2. The plaintiff's assertion

A. Since the instant state-owned land is an administrative property within a national park as an administrative property, the disposition of disuse of the instant state-owned land, which was made with respect to the instant state-owned land without the prior procedure to abolish the designation of a national park or change the district thereof under the Natural Parks Act, is significant and apparent that its defects are void.

B. As the disposition of disuse of this case becomes void automatically, the State-owned land of this case constitutes administrative property and the Korea Asset Management Corporation cannot have the right to manage and dispose of the State-owned land of this case, which is administrative property. Therefore, the Defendant’s entrustment to the Korea Asset Management Corporation of the management and disposal of the State-owned land of this case is

3. We examine, ex officio, as to the legitimacy of the claim for nullification of the instant consignment act among the instant lawsuits, the validity of the claim for invalidity confirmation of the instant consignment act.

disposition that is the object of an appeal litigation means a legal enforcement in public law with respect to a specific fact conducted by an administrative agency, which directly changes the specific rights and obligations of the people, by the exercise of such public authority, and an act that is conducted in the course of internal action between administrative agencies or the process of administrative affairs of an administrative agency and that does not directly affect the rights and obligations of the people, may not

The Plaintiff’s instant consignment act seeking confirmation of invalidity is an act of entrusting the management and disposal of the instant State-owned land to the Korea Asset Management Corporation after the Defendant disposed of the instant disuse of the State-owned land against the instant State-owned land and transferred by the Administrator of the Korea Forest Service, and it cannot be deemed that the instant consignment act was an internal act between administrative agencies conducted under Article 2 subparag. 10 and Article 42 of the former State Property Act and Article 38(3) of the Enforcement Decree of the State Property Act, which provide that the Korea Asset Management Corporation shall entrust the management and disposal of the instant State-owned land, the Defendant’s disuse of the instant State-owned land to the Korea Asset Management Corporation. As such, it cannot be deemed that the instant consignment act was an object of appeal and directly changing the specific rights and obligations of the people (see Daejeon High Court Decision 2009292, Jul. 16, 2009). This does not change because the instant abolition of use of the State-owned land becomes null and void as a matter of course.

Ultimately, the part of the instant lawsuit seeking invalidation of the instant consignment act is unlawful as an appeal litigation filed against the Plaintiff, which does not fall under a disposition.

4. Whether the disposition in this case is invalid

(a) Requirements for disuse;

1) The head of a central government agency shall abolish the use of administrative property in accordance with the criteria prescribed by Presidential Decree and without delay transfer the property to the office of general administration when the disuse has been made (Article 40 of the former State Property Act); where the administrative property has not been used for administrative purposes; where the administrative property has not been used for administrative purposes; and where the administrative property has not been used for administrative purposes within five years from the date of determination of the use as administrative property, and where necessary to develop pursuant to

(Article 37 (1) of the Enforcement Decree of the State Property Act)

2) The disposition shall be subject to the requirements and procedures prescribed by the relevant laws and regulations. In light of the fact that the State Property Act grants the authority to disuse ex officio to the office of general administration, but the head of a central government agency, upon receipt of a request for disuse from the office of general administration, may exercise supplementaryly if the abolition of the use is not made without justifiable grounds (Article 22 of the former State Property Act). If the general office intends to disuse ex officio, it should be the case where the cause under Article 37 of the Enforcement Decree of the State Property Act occurs, such as where the administrative property is not used for administrative purposes, or where the head of an office, upon receipt of a request from the office of general administration, fails to disuse the administrative property for administrative purposes, notwithstanding the request from the office of general administration. The term "cases where the administrative property is not used for administrative purposes" is interpreted to mean cases where the administrative property is virtually not used for administrative purposes or where it is no longer necessary to use it for administrative purposes.

3) Therefore, we examine whether the State-owned land of this case is no longer used as the national park zone, which is its administrative purpose.

(b) Whether it has not been used as a national park zone;

1) Criteria for judgment

National Park refers to an area worthy of representing the natural ecosystem, nature and cultural landscape of the Republic of Korea, which is designated by the Minister of Environment (current Act) through resident briefing sessions, public hearings, hearing opinions of the competent Mayor/Do Governor, etc., consultation with the heads of related central administrative agencies, and deliberation of the National Park Committee (Articles 2, 4, 4-2, and 7 of the Natural Parks Act). Where it is inevitable for military purposes or public interest as determined by the Presidential Decree due to natural disasters, etc., a national park cannot be used as a park due to its feasibility, unless it is deemed unnecessary to maintain the natural park as it goes against the standards for designation of the natural park (Article 8 of the Natural Parks Act), or its district shall not be reduced or altered (Article 4-2 of the Natural Parks Act). The park management agency shall determine the standards for permission to use the natural park conservation district, park natural environment district, etc. according to a park planning, and any person who intends to directly perform a specific act, such as construction or mineral extraction, alteration in the form and quality of a national park within the park area (see Article 23).

(ii) the facts of recognition

A) On February 1, 1975, the State-owned land of this case was designated as Kudsan National Park, and was designated as a natural environment district in a park in accordance with the park special use district plan. The Plaintiff’s skiing ground facilities are designated as a skiing ground facilities among sports facilities under the park facilities plan. The State-owned land of this case was cancelled or changed in the area after the abolition of the instant disposition.

B) On July 9, 2013, the Korea Asset Management Corporation changed the rent rate from 20/1,00 to 50/1,000 or more as stipulated in the Enforcement Decree of the State Property Act when the Plaintiff renewed the instant loan agreement after the expiry of the loan agreement. Upon receipt of the Plaintiff’s application for purchase, the Plaintiff requested the Korea Asset Management Corporation to promptly respond to whether to purchase the instant State-owned land in advance, taking into account the period required for the sale, such as consultation with the relevant officers, such as the Ministry of Environment and the Korea National Park Management Corporation. The Plaintiff applied for the purchase of the instant State-owned land to the Korea Asset Management Corporation, and the Korea Asset Management Corporation requested consultation on the sale of the instant State-owned land to the Ministry of Environment and the Korea National Park Management Corporation, a related agency, around January 10, 2014.

C) However, around March 2014, the Ministry of Environment and the National Park Environment (hereinafter “National Park”) did not fall under inevitable circumstances for military and public interest purposes, which are grounds for disposal under Article 75 of the Natural Parks Act and Article 42 of the Enforcement Decree of the Natural Parks Act. There are many areas designated as a park nature conservation district and a park natural environment district, which need to be preserved, and the increase of private land in a national park is not desirable in terms of the efficient protection and management of national parks.

D) On March 14, 2014, the Korea Asset Management Corporation sent a reply to the Plaintiff that sale is impossible due to the Ministry of Environment and the Korea National Park Management Corporation’s non-approval.

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 2, 3, 15 through 17, 21, and the purport of the whole pleadings

3) Determination

According to the above facts, this case’s state-owned land is a state-owned land designated and publicly announced as a virtue heritage national park, and even if the Plaintiff occupied and used it as a skiing ground facility site by changing the shape of a part of the land, it cannot be deemed that it still constitutes property for public use, which is administrative property, and no longer used as a national park zone, unless the procedures for the abolition of the designation of a national park or the change of its district are prior to the use of the land in this part. Whether the disposition of disuse of this case’

1) Criteria for judgment

For a defective disposition to be null and void as a matter of course, the defect must be objectively apparent as being in violation of the important part of the law. In determining whether the defect is significant and obvious, the purpose, meaning, function, etc. of the law should be examined from a teleological perspective, and at the same time, reasonable consideration should be given on the specificity of the specific case itself (see, e.g., Supreme Court en banc Decision 94Nu4615, Jul. 11, 1995).

2. The degree of defects caused by defects in the procedure for cancellation of the national park zone.

The State-owned land of this case is a state-owned land designated as a national park and for which a park planning was established, and is an administrative property for public use. Accordingly, the State-owned land of this case cannot be disused, unless the procedure of removing the State-owned land of this case or excluding it from the national park zone is taken for administrative purposes. However, the Defendant, without taking any measures to cancel it in the national park zone under the Natural Parks Act, deemed the State-owned land of this case as not being used for administrative purposes and disposed of the disuse of this case.

Therefore, since the disposition of disuse of this case was seriously defective in violation of the important part of the applicable laws and regulations, and the administrative property is abolished as general property without taking measures such as cancellation of the national park zone, its defect is objectively obvious.

D. Sub-committee

Ultimately, the disposition of disuse of this case is null and void because there is a serious and apparent defect that the state-owned land of this case is a national park zone. This part of the lawsuit seeking its confirmation is a direct and specific interest protected by the law based on the disposition, and without relation to the progress of the civil judgment of this case, which is a performance suit premised on the invalidation of the disposition of this case (see, e.g., Supreme Court en banc Decision 2007Du6342, Mar. 20, 2008; Supreme Court Decision 2008Du3685, Jun. 12, 2008).

5. Conclusion

Therefore, the part of the claim for confirmation of invalidity of the instant consignment act among the lawsuits of this case is unlawful, and thus, the plaintiff's claim for confirmation of invalidity of the disposition to abolish the use of this case is justified, and it is so decided as per Disposition.

Judges Jin-type

Judge Lee Jong-soo