[1] In a case where Party A announced the determination that Party B established and operated in the Do would close the local medical center and promulgated the municipal ordinances that the local medical center is dissolved after a series of measures to close its business were taken accordingly, and the liquidation procedures of Party B’s local medical center are completed, the case holding that Party A’s decision to close its business is not subject to appeal litigation, but it is difficult to recognize the benefit of lawsuit seeking revocation

[2] In order to establish the State compensation liability under Article 2(1) of the State Compensation Act, whether the unlawful performance of duties by a public official infringes upon another person's rights and interests and specific losses should occur (affirmative)

[1] In a case where the Do governor announced the local medical center of Eul established and operated in the Do and promulgated the municipal ordinances that the local medical center of Eul is dissolved after a series of measures to close the local medical center of Eul was taken accordingly, and the liquidation procedures of Eul are completed, the case holding that, in full view of the fact that the local medical center of Eul established and operated by the Do is a matter to be determined by municipal ordinances of local governments, and that the establishment, consolidation, and dissolution of the local medical center of Eul is a matter to be determined by the Do municipal ordinances of the Do, the decision of the Do governor Gap's Do governor's Do's Do's Do's Do's Do's Do's Do's Do's Do's Do's Do's Do's Do's Do's Do's Do's Do's Do's Do's Do's Do's Do's Do's Do's Do's -'s Do's 's Do's 's 's -'s 's 's '

[2] Article 2(1) of the State Compensation Act provides, “The State or a local government shall compensate for damages caused by a public official or a private person entrusted with public duties (hereinafter “public official”) in violation of the statutes intentionally or by negligence while performing his/her duties, or when he/she is liable to compensate for damages pursuant to the Guarantee of Automobile Accident Compensation Act.” Therefore, in order to establish the State’s liability, it is insufficient to say that the performance of duties by a public official is illegal, and thereby, the rights and interests of another person should be infringed and specific damages should occur.

[1] Article 9(2)2 Item (e) of the Local Autonomy Act, Article 4(1) and (3) (see current Article 4(5)) of the former Act on the Establishment and Operation of Local Medical Centers (Amended by Act No. 12072, Aug. 13, 2013); Articles 2(1)1 and 12 of the Administrative Litigation Act / [2] Article 2(1) of the State Compensation Act

Plaintiff 1 and three others (Law Firm Lee & Lee, Attorneys Kim Yong-nam et al., Counsel for the plaintiff-appellant)

See Attached List of Intervenors joining the Plaintiff (Plaintiff’s Intervenor 1 and 10 others)

Gyeongnam-do Governor and two others (Attorney Lee Dong-soo, Counsel for the plaintiff-appellant)

Busan High Court (Chowon) Decision 2014Nu11529 decided December 2, 2015

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

The grounds of appeal are examined.

1. As to the second ground for appeal

After finding the facts as indicated in its reasoning, the lower court rejected the Plaintiffs’ assertion that the Ordinance partially amended the Ordinance on the Establishment and Operation of the Gyeonggi-do Medical Center (Ordinance No. 3832, hereinafter “instant Ordinance”) promulgated on July 1, 2013 by the Mayor/Do Governor of the Gyeonggi-do, which was promulgated on July 1, 2013, was in violation of the Ministry of Health and Welfare’s order to promote the work of the Minister of Health and Welfare, on the grounds that it is difficult to deem that the Minister of Health and Welfare ordered Defendant Gyeong-do Governor to withdraw the policy to discontinue the business of the Jyeong-do Medical Center and to maintain the Jyeong-do Medical Center.

Examining the reasoning of the lower judgment in light of the record, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the facts beyond the bounds of the principle of free evaluation of evidence against logical and empirical rules or by misapprehending

2. As to the third ground for appeal

After finding facts as indicated in its reasoning, the lower court rejected the Plaintiffs’ assertion that the instant ordinances violate the provisions of Article 35(3) of the Subsidy Management Act, on the premise that approval by the head of a central government agency for the abolition of subsidy projects or the transfer of important property, etc., as prescribed by Articles 24 and 35(3) of the Subsidy Act (hereinafter “Subsidy Act”) may be granted ex post facto approval, based on the premise that approval by the head of a central government agency for the abolition of subsidy projects or the transfer of important property may also be granted.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court’s reasoning was partially inappropriate, but its conclusion that the Ordinance of this case cannot be deemed null and void is justifiable. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine

3. Regarding ground of appeal No. 1

A. The term “disposition”, which is the subject of an appeal litigation, means “the exercise or refusal of public authority, as an enforcement of law with respect to a specific fact by an administrative agency, and other corresponding administrative actions” (Article 2(1)1 of the Administrative Litigation Act). The issue of whether a certain act by an administrative agency may be subject to an appeal litigation cannot be determined abstractly and generally, and the issue of whether it can be subject to an appeal litigation is determined individually by taking into account the content and purport of the relevant Acts and subordinate statutes, the subject, content, form, and procedure of the act, the substantial relation between the act and the disadvantage suffered by interested parties, such as the other party, and the principle of administration by the rule of law, and the attitude of the administrative agency and interested parties related to the pertinent act (see, e.g., Supreme Court en banc Decision 2008Du1

In addition, it is not an element to be considered at the stage of determining whether the disposition is legitimate, or at the stage of examining the requirements for the lawsuit, whether there is a legal basis for any disposition, and whether the disposition in question complies with the administrative procedure.

B. Article 9(2)2(e) of the Local Autonomy Act provides that “the establishment and operation of public health care institutions” as one of the “related affairs concerning the promotion of residents’ welfare is examples of the duties of local governments.” Article 4(1) of the former Act on the Establishment and Operation of Local Medical Centers (amended by Act No. 12072, Aug. 13, 2013; hereinafter “Local Medical Centers Act”) provides that “Local governments may establish local medical centers. If necessary, local medical centers may be integrated or branch institutes may be established.” Article 4(3) provides that “where a local government intends to establish a local medical center, matters necessary for the establishment, duties, and operation thereof shall be prescribed by municipal ordinances of local governments, except as otherwise provided for in this Act.”

In full view of the reasoning of the lower judgment and the evidence duly admitted by the lower court: ① on February 26, 2013, the lower court: (a) announced the Do governor’s decision to discontinue the operation of the Jeju Medical Center with the title “I Do Governor’s thickness” (hereinafter “the instant decision to discontinue the operation”); (b) around that time, the Nonparty, a local technical officer of the Do Office, issued a personnel order to dispatch the Nonparty, as the head of the Do Office’s planning and management office; (c) from March 4, 2013 to the head of the 3rd Medical Center’s planning and management office; and (d) from March 4, 2013 to May of the same year, the Nonparty, as the Nonparty’s agent, terminated the existing contract for the medical staff; and (d) from the 232 staff of the Do Council, the Nonparty, who was subject to the resolution to temporarily close the operation of the Do governor’s office and the Nonparty’s senior medical staff; and (d) from the 3rd.

C. In light of the relevant provisions and the legal principles as seen earlier, the following facts are revealed: (i) the establishment, consolidation, and dissolution of a local medical center is determined by the municipal ordinance of the local government; (ii) the closure or dissolution of a medical center, which is a local medical center established and operated by the Gyeongnam-do, is a matter of determination by the municipal ordinance of the Gyeongnam-do; (iii) the measures were taken to terminate a contract with the medical center before July 1, 2013, such as the termination of the contract with the medical center; and (iv) the notification of the closure of a medical center for the patients; and (v) such series of measures are deemed to be following the decision of the closure of the business in this case by the Gyeongnam-do Governor; and (v) the employees have significant influence on their rights and obligations, such as the abolition of the business in this case, and thus, the administrative agency directly exercising public authority by the Do governor and its employees are subject to the exercise of public authority.

D. Meanwhile, in a lawsuit seeking nullification or revocation of an administrative disposition, where it is not possible to restore the state of illegality caused by the administrative disposition to the original state even if the judgment was rendered to nullify or revoke the administrative disposition due to its illegality, there is no benefit in the lawsuit seeking nullification or revocation, in principle,. However, even if reinstatement is impossible, the benefit in the lawsuit can only be exceptionally recognized only if there exist other rights or interests recoverable due to such nullification or revocation (see, e.g., Supreme Court Decision 2013Du1638, Jun. 10, 2016).

In the case of this case, as seen earlier, since the ordinances of this case were enacted and implemented to dissolve the Jinju Medical Center after the closure of this case, and since there is no reason to view that the ordinances of this case were null and void, it is deemed impossible to reinstate the situation before the closure of the Jinju Medical Center. Therefore, even if the court revokes the decision to discontinue the business of this case, it merely means to confirm the illegality of the decision to discontinue the business of this case, and it is not sufficient to confirm the purpose of the plaintiffs' resumption of the Jinju Medical Center which the plaintiffs desire, and it is not sufficient to achieve the goal of the plaintiffs' resumption of the business, and as the subsequent examination, it is difficult to view that the plaintiffs' claim for national compensation remains without merit. Accordingly, it is difficult to view that there is other rights or interests that can be recovered to the plaintiffs due to the cancellation of the decision to discontinue the business of this case. Accordingly, even if the decision to discontinue the

E. Therefore, the lower court erred by misapprehending the part that the instant decision of the Do governor was not a “disposition” subject to an appeal litigation, but the conclusion that dismissed the instant decision by deeming the part of the instant lawsuit to be unlawful by deeming the claim for revocation of the instant decision of the Do governor to be unlawful is eventually justifiable.

4. As to the fourth ground for appeal

A. Article 2(1) of the State Compensation Act provides, “Where a public official or a private person entrusted with public duties (hereinafter “public official”) causes damage to another person in violation of the statutes intentionally or by negligence while performing his/her duties, or is liable to compensate for damage pursuant to the Guarantee of Automobile Accident Compensation Act, the State or a local government shall compensate for the damage pursuant to this Act.” Therefore, in order to establish the State’s liability, it is insufficient to say that the performance of duties by a public official is unlawful, and thereby, the rights and interests of another person should be infringed, and specific

B. The lower court determined as follows: (a) based on the evidence, acknowledged the facts as indicated in its reasoning; (b) the Jinju Medical Center did not adopt any doctor any longer after the closure decision of the instant case; and (c) intentionally reduce human resources and facilities necessary for medical services from March 2013 to public officials belonging to the Gyeongnam-do Office by individually contact with or by their guardians; (c) although it is acknowledged that the situation was: (a) the return/use did not reach the level of intimidation or pressure; (b) continued to provide patients who refuse to discharge/all of the hospital; and (c) Defendant 3 decided to discontinue the operation of the Jinju Medical Center in accordance with the policy decision as the Do governor; and (d) as long as it was not unlawful, it cannot be deemed that the subsequent measure, such as discharge/electric power resource, etc., committed by the Jinju-do Medical Center during the closure of its business cannot be deemed unlawful.

C. As seen earlier, even if the local medical center established and operated by the defendant Gyeong-do established and operated, the closure of the business was determined by the municipal ordinance of the defendant Gyeong-do, Defendant 3, the Do governor of the defendant Gyeong-do, was made prior to July 1, 2013 and a series of measures were taken to close the business accordingly. Since the municipal ordinance of this case was promulgated on July 1, 2013, the validity of the municipal ordinance of this case is justified by the ordinance of this case. However, the decision of the closure of the business made before it was made by a non-authorized person, and thus, it is unlawful as it was based on the illegal decision of the closure of the business.

D. However, in light of the evidence adopted by the lower court, there is no evidence to find that there was any specific damage or impairment on the life and health of the hospitalized patients, etc. alleged as damage by Plaintiffs 1, 2, and 3. Therefore, it is difficult to deem that the damage was inflicted on Plaintiffs 1, 2, and 3, and therefore, it cannot be deemed that the tort liability of Defendant 3 or the Defendant Ginam-do, to which they belong, is

E. Therefore, although the reasoning of the lower court on this part was partly inappropriate, it is justifiable to have rejected the claim for damages by Plaintiffs 1, 2, and 3. Accordingly, the lower court did not err by misapprehending the legal doctrine on the establishment of a tort by a public official under the State Compensation Act, contrary to what is alleged in the grounds of appeal.

5. 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 on the bench.

[Attachment] List of Intervenors joining the Plaintiff: Omitted

Justices Park Poe-dae (Presiding Justice)