[1] Where the administrative authority of the head of a higher local government on park management is delegated to the head of a lower local government, the park management agency (=head of a lower local government)

[2] In a case where the delegated authority occupies the land that became the site of park, etc. in order to handle its affairs by entrusting part of its authority to the head of a subordinate local government, etc. under a delegation ordinance, whether the delegated authority indirectly occupies the land (affirmative)

[1] According to Articles 5(1) and 6(1) and (2) of the former Urban Park Act (amended by Act No. 5453, Dec. 13, 1997), not only where the head of a Si/Gun directly constructs an urban park, but also where a person, other than the head of a Si/Gun, constructs an urban park or manages it upon entrustment, the park management agency in question is, in principle, the head of a Si/Gun having jurisdiction over the administrative district where the park is located. However, if the administrative authority of the head of a higher-level local government in a park management was delegated to the head of a subordinate local government, etc. under the delegation of administrative authority, the

[2] In a case where the delegated authority, such as the State or a higher local government, delegates part of its authority to the delegated authority under the delegated ordinances, etc. and the delegated authority occupies the land that became a site for parks, etc. in order to handle the affairs thereof, the delegated authority may establish not only legal acts, but also the provisions of laws, State acts, etc., and thus such delegation ordinances, etc. can be deemed as an occupancy-out relationship. In light of the fact that the delegated authority, which is the subject of the delegation of affairs, return the delegated ordinances, etc. to the statutory management authority upon termination of the delegation of the authority due to the amendment of the delegation ordinances, and demand the return of possession to the delegated authority, the delegated authority shall be deemed as an indirect possession of the land that became a site for the park, etc. directly occupied by the delegated authority, which is the legal management authority or the local government to which the delegated authority belongs. Thus, the delegated authority is obligated to return unjust enrichment from the possession and use of the site to the owner of the park.

[1] Articles 5(1) (see current Article 19(1)), 6(1) (see current Article 21(1)), and 6(2) (see current Article 20(1)) of the former Urban Park Act (amended by Act No. 5453, Dec. 13, 1997); Articles 5(1) (see current Article 19(1)) and 6(2) (see current Article 20(1) of the Urban Park and Green Areas Act); Article 194 of the former Urban Park Act (amended by Act No. 5453, Dec. 13, 1997); Article 6(1) (see current Article 21(1) and (2) (see current Article 20(1) of the Urban Park and Green Areas Act); Article 194 of the Civil Act

Plaintiff 1 and one other

Seoul Special Metropolitan City et al. (Law Firm Min & Lee, et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2006Na38354 decided January 30, 2007

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

The grounds of appeal are examined.

1. The judgment of the court below

After finding the facts comprehensively based on the adopted evidence, the court below held that the defendant Gwanak-gu is a de facto controlling entity, and the defendant Gwanak-gu is jointly occupying and using the forest of this case as the site of the upper village park, since it is jointly owned and used as the owner of the forest of this case as the owner of the forest of this case who is the owner of the forest of this case.

2. Judgment of the Supreme Court

A. Installation of the instant park

According to Articles 5(1) and 6(1) of the former Urban Park Act (amended by Act No. 5453, Dec. 13, 1997; hereinafter referred to as the “former Urban Park Act”), an urban park may be constructed and managed by the head of a Si/Gun having jurisdiction over the administrative district in which the relevant park is located in accordance with a development plan under Article 4; a person other than the head of a Si/Gun may, under the conditions as prescribed by the Presidential Decree, construct an urban park or park facilities after obtaining designation of an implementer under Article 23 of the Urban Planning Act and authorization of an implementation plan under Article 25 of the same Act; and may manage the constructed urban park or park facilities after obtaining authorization of an implementation plan under Article 23(1), (4) and (5) of the former Urban Park Act (amended by Act No. 5115, Dec. 29, 199; hereinafter referred to as the “former Urban Park Act”) and the authority of the Minister of Construction and Transportation under Article 14(1) and (2) of the former Enforcement Decree of the Urban Park Act (amended by Ordinance No. 4).

In full view of the above laws and regulations, around October 18, 1994, the authority to designate an implementer and authorization of an implementation plan to build an urban park under the former Urban Park Act was delegated to the head of the Gu. Thus, a person other than the Mayor of Seoul Special Metropolitan City was able to build an urban park with the designation of an implementer and authorization of an implementation plan from

According to the records, the head of Gwanak-gu, Seoul Special Metropolitan City and the head of Gwanak-gu, which had already been determined on December 23, 1983 to implement the redevelopment project in the part of the defendant Gwanak-gu, including the forest land in this case, among the Do neighboring parks whose development plan was already decided on December 23, 1983, he shall consult with the head of Gwanak-gu, which is the supervisory authority of the redevelopment project, to implement measures to restore the function of the park after organizing an unauthorized building, etc. in the redevelopment area. On October 18, 1994, the head of Gwanak-gu, Seoul Special Metropolitan City and the head of Gwanak-gu shall establish a park and restore the function of the park as the park. The head of Gwanak-gu, Seoul Special Metropolitan City and the head of Gwanak-gu shall establish an additional plan for the implementation plan for the implementation of the project in this case with the approval of the project in this case, with the head of Seocheon-gu, Seoul Special Metropolitan City and the head of Gwanak-gu, which had the nature of the park development project.

B. The management agency of the instant park

According to Articles 5(1), 6(1) and (2) of the former Urban Park Act, not only where the head of a Si/Gun directly constructs an urban park, but also where a person other than the head of a Si/Gun builds an urban park or manages it on commission, the management agency of the relevant park shall be the head of a Si/Gun having jurisdiction over the administrative district in which the park is located. Thus, the management agency of the instant park established by the instant association shall, in principle, be the

However, Article 5 (1) [Attachment Table] of the Seoul Special Metropolitan City Ordinance on Delegation of Administrative Authority (amended by Ordinance No. 3401 of July 5, 1997) and Article 5 (1) [Attachment Table] and Article 5 (1) [Attachment Table] of the Seoul Special Metropolitan City Ordinance on Delegation of Administrative Authority (amended by Ordinance No. 4492 of April 17, 2007), which was in force at the time of the closing of argument in the original trial, are delegated to the head of the Gu, the head of the Seoul Special Metropolitan City Mayor, the head of the Seoul Special Metropolitan City Mayor, and the head of the Seoul Special Metropolitan City Office for the Management of Urban Park, etc., and if the administrative authority of the head of the higher local government with respect to the management of the park was delegated to the head of the lower local government under the Ordinance on Delegation of Administrative Authority, the head of the lower local government, etc. entrusted with the authority shall be deemed the management authority of the park in this case from the time of the construction of the park in this case.

C. Return of unjust enrichment

(1) Duties of Defendant Gwanak-gu

Since a local government that belongs to the management agency under the law delegated with authority cannot be deemed to possess for the management of the park in the capacity of the possession assistant, the local government shall not refuse to return unjust enrichment obtained from the possession and use of the site in the capacity of the owner of the park (see Supreme Court Decision 98Da61562 delivered on April 23, 199).

Therefore, the defendant Gwanak-gu, which is the managing agency of the instant park, has the duty to return to the plaintiff unjust enrichment gained by occupying and using the instant forest as the site of the instant park.

The judgment of the court below that deemed the defendant Gwanak-gu as the de facto controlling entity of the park of this case is erroneous in the misapprehension of legal principles on the construction and management of urban parks, the change of the management agency by delegation of agency, but the conclusion that ordering the return of unjust enrichment is correct.

(2) Duties of Defendant Seoul Special Metropolitan City

In a case where a delegated administrative agency, such as a State or a higher-ranking local government, etc., delegates part of its authority to an delegated administrative agency, such as the head of a subordinate local government, etc. for the management of its affairs, and the delegated administrative agency occupies the land that became a site for parks, etc., the delegated administrative agency may establish not only legal acts but also provisions of Acts and subordinate statutes, State acts, etc. As such, such delegation ordinances, etc. can be seen as an occupancy intermediary relationship. In light of the fact that the delegated administrative agency, which is the subject of the reversion of affairs, is in the position to return to the delegated administrative agency under the relevant Acts and subordinate statutes and to demand the return of possession to the delegated administrative agency, the delegated administrative agency shall be deemed as an indirect possession of the land, such as the delegated administrative agency under the relevant Acts and subordinate statutes or the park, etc. directly occupied by the local government to which it belongs

In light of the above legal principles, the defendant Seoul Special Metropolitan City Mayor, to which the head of the Gwanak-gu Office delegated the authority to manage the park of this case to the head of the Gwanak-gu Office under the delegation ordinance, shall be deemed to have indirectly occupied the forest of this case, which is the site of the park of this case, through the defendant Gwanak-gu, to which the head of the Gwanak-gu Office, who is the management authority under the law, belongs. Therefore, the

In so determining, the lower court erred by misapprehending the legal principles on the construction and management of urban parks, change of the management agency by delegation of the agency, occupation relationship at the time of delegation of the agency, etc. However, the conclusion that ordering the Defendant Seoul Special Metropolitan City to return unjust enrichment is correct.

3. Conclusion

Therefore, all appeals are 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.

Justices Kim Nung-hwan (Presiding Justice)