[1] In a case where an administrative agency does not give prior notice to a party under the Administrative Procedures Act or does not give the party an opportunity to submit opinions in making an infringing administrative disposition, whether the disposition is unlawful (affirmative with qualification)

[2] The case holding that where an administrative agency accepted a report on the development and utilization of groundwater as a hot spring district and notified prior notice under the Administrative Procedures Act or provided an opportunity to present opinions, and revoked the disposition of restoration to its original state, the disposition is unlawful on the ground that it does not constitute an exception under the Administrative Procedures Act, which does not require prior notice only on the grounds of prior notice by the administrative guidance method or the parties' voluntary refusal of closure, etc.

[1] According to Articles 21(1) and (4) and 22(1) through (4) of the Administrative Procedures Act, where an administrative agency imposes a duty on a party or imposes a restriction on his rights and interests, it shall notify the party concerned of the fact that the grounds for such disposition and the contents of such disposition, the legal basis thereof, the submission of his opinion, and the processing methods when failing to present his opinion. Even if other Acts and subordinate statutes provide that a hearing shall be held or a public hearing shall be held, the party concerned shall be given an opportunity to present his opinion. However, in cases where a hearing is not held or a public hearing is not held, the administrative agency shall not give a prior notice or hear his opinion in light of the nature of the disposition in question or where there are reasonable grounds for deeming that the hearing of opinion is considerably difficult or clearly unnecessary. Thus, in rendering infringing administrative dispositions, if the administrative agency did not give such prior notice or give the party an opportunity to present his opinion, such dispositions shall not be exempt from revocation

[2] The case holding that where an administrative agency accepted a report on the development and utilization of groundwater as a hot spring district and notified prior notice under the Administrative Procedures Act or provided an opportunity to present opinions, and revoked the disposition of restoration to its original state, the disposition is unlawful on the ground that it does not constitute an exception under the Administrative Procedures Act, which does not require prior notice only on the grounds of prior notice by the administrative guidance method or the parties' voluntary promise of closure, etc.

[1] Articles 21(1) and (4), 22(1), (2), (3), and (4) of the Administrative Procedures Act; Articles 1 [general administrative disposition] and 19 of the Administrative Litigation Act / [2] Articles 21(1) and (4), 22(1), (2), (3), and (4) of the Administrative Procedures Act; Article 1 of the Administrative Litigation Act / [general administrative disposition], Article 19 of the Administrative Litigation Act; Article 7 of the former Groundwater Act (amended by Act No. 5286 of Jan. 13, 1997)

[Judgment of the court below]

Ulsan Metropolitan City Head of Ulsan Metropolitan City (Law Firm International Law, Attorney Ha Man-young, Counsel for the defendant-appellant)

Busan High Court Decision 98Nu3273 delivered on April 16, 1999

The appeal is dismissed. The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

According to Articles 21(1) and (4) and 22(1) through (4) of the Administrative Procedures Act, where an administrative agency imposes a duty on a party or imposes a restriction on his rights and interests, it shall notify the party concerned of the facts and legal grounds for the disposition, the purport that the party concerned may submit his/her opinion, the method of disposal when submitting his/her opinion, and other matters such as the submission of his/her opinion. In cases where other Acts and subordinate statutes do not stipulate that the hearing or public hearing shall be held, the party concerned shall be given an opportunity to submit his/her opinion. However, in cases where the hearing of opinion is not clearly difficult or unnecessary due to the nature of the disposition in question, prior notice or hearing of opinion may not be made. Thus, in cases of an infringing administrative disposition, unless prior notice or hearing of opinion is given to the party concerned, if the administrative agency did not give such prior notice or giving him/her an opportunity to present his/her opinion, such disposition shall not be revoked due to its illegality

According to the reasoning of the judgment below, the court below accepted the plaintiff's report on the development and utilization of groundwater on March 29, 1997, which was accepted by the defendant, but revoked the above disposition on February 4, 1998 and issued an order for restoration to the original state. There is no evidence to acknowledge that the defendant, in rendering the disposition of this case, notified the plaintiff in advance or provided an opportunity to present opinions in accordance with the Administrative Trust Act, and the plaintiff's prior notification in accordance with the administrative guidance method or the plaintiff's voluntary promise to voluntarily close a hot spring area does not constitute an exception provided for in the above Act.

In light of the records and the legal principles as seen earlier, the court below's measures are just, and there is no error in the misapprehension of legal principles as to advance notice or provision of opportunity to present opinions under the Administrative Binding Law, as otherwise alleged in the ground of appeal.

In addition, since it is clear that the disposition of this case was made after the Administrative Procedures Act was in force and it was not in progress at the time of the enforcement of the above Act, it cannot be said that Paragraph 2 of the Addenda to the above Act is applied to the disposition of this case, and there is no error of law by misunderstanding legal principles as to Paragraph 2 of the Addenda

All of the grounds of appeal cannot be accepted.

Therefore, 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 Seo-sung (Presiding Justice)