[1] In a case where a person who received a corrective order from an administrative agency pursuant to Article 14(5) and Article 17 subparag. 5 of the Small River Maintenance Act violates it, whether the corrective order should be lawful in order to punish him/her under Article 27 subparag. 4 of the same Act (affirmative)

[2] In a case where an administrative agency did not give prior notice or give an opportunity to present opinions in accordance with Articles 21(1) and (4) and 22 of the Administrative Procedures Act while taking an infringing administrative disposition, whether such disposition is unlawful (affirmative in principle)

[1] Article 14(5), Article 17 subparag. 5, Article 27 subparag. 4, Article 21(1) and (4), and Article 22 of the Administrative Procedures Act / [2] Article 21(1) and (4), and Article 22 of the Administrative Procedures Act

[1] Supreme Court Decision 2014Do12230 Decided September 21, 2017 / [2] Supreme Court Decision 2011Du30687 Decided January 16, 2013 (Gong2013Sang, 350)

Defendant

Defendant

Attorney Jin-sail

Chuncheon District Court Decision 2018No1067 Decided February 7, 2020

The judgment of the court below is reversed, and the case is remanded to Chuncheon District Court.

The grounds of appeal are examined.

1. As to the grounds of appeal related to acquittal, such as res judicata of final and conclusive judgment and prohibition of double punishment

In light of the relevant legal principles and records, the lower court’s rejection of the Defendant’s assertion on this part on the grounds as stated in its reasoning is acceptable. In so doing, it did not err by misapprehending the legal principles on res judicata of a final and conclusive judgment, prohibition of double punishment, and acquittal judgment

2. As to the ground of appeal on procedural illegality of administrative disposition

A. Where a person who received a corrective order from an administrative agency pursuant to Article 14(5) and Article 17 subparag. 5 of the Small River Maintenance Act violates it, the corrective order should be lawful in order to punish him/her pursuant to Article 27 subparag. 4 of the same Act. Therefore, even if the corrective order is not void automatically, a violation of Article 27 subparag. 4 of the same Act cannot be established, and the same applies to cases where the corrective order is illegal due to procedural defects (see Supreme Court Decision 2014Do1230, Sept. 21, 2017, etc.).

Meanwhile, according to Articles 21(1), 21(4), and 22 of the Administrative Procedures Act, where an administrative agency imposes a duty on a party or imposes a restriction on his/her rights and interests, it shall notify the parties concerned of the fact that the grounds for the disposition, details of the disposition, and legal grounds thereof, the submission of their opinions, and the method of disposal when failing to submit their opinions, etc., and, even in cases where other Acts and subordinate statutes stipulate that a hearing shall be held or a public hearing shall be held, the parties concerned, etc. shall be provided with an opportunity to present their opinions; however, prior notice or hearing of opinions may not be conducted only in cases where the relevant administrative agency does not give such prior notice or give them an opportunity to present their opinions, unless there are exceptional cases where the administrative agency did not give such prior notice or give them an opportunity to present their opinions (see, e.g., Supreme Court Decision 2011Du30687, Jan. 16, 2013).

B. The record reveals the following facts: (a) the Defendant, who did not report the installation and occupation of artificial structures (i.e., artificial structures) regarding a small river area as indicated in the facts charged in the instant case, issued a corrective order (hereinafter “instant corrective order”) to remove the relevant artificial structure and restore the original state. However, there is no evidence suggesting that the artificial structure was prior to the Defendant or given an opportunity to submit opinions; and (b) there is no evidence supporting the existence of exceptional circumstances that the artificial structure did not undergo such procedures.

C. Examining these facts in light of the legal principles as seen earlier, it is difficult to view that the head of an authorized head of an administrative agency, while issuing the instant corrective order, it is difficult to deem that the Defendant given legitimate prior notice or given an opportunity to present opinions pursuant to Articles 21 and 22 of the Administrative Procedures Act, and that there is any ground to justify this. Therefore, the instant corrective order is unlawful due to such procedural defect, and even if the Defendant did not comply with the corrective order, it cannot be concluded that the Defendant violated Article 27 subparag. 4 of the Small River Maintenance

Nevertheless, the lower court upheld the first instance judgment that found the Defendant guilty of the instant facts charged on the grounds stated in its reasoning. In so doing, the lower court erred by misapprehending the legal doctrine on the fairness of administrative acts, the preliminary question, and the establishment of a crime of violating Article 27 subparag. 4 of the Small River Maintenance Act, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, 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 Ahn Jae-chul (Presiding Justice)