Asan Agricultural Co., Ltd. (Attorney Han-chul, Counsel for the defendant-appellant)

Asan City (Attorney Choi Byung-jin et al., Counsel for the plaintiff-appellant)

April 9, 2009

Daejeon District Court Decision 2008Guhap1742 Decided November 26, 2008

1. Revocation of a judgment of the first instance;

2. On April 21, 2008, the defendant's disposition of rejecting the application for new building storage facilities (DSC) business operator's recognition against the plaintiff is revoked.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. On January 7, 2008, the Plaintiff filed an application with the Defendant for recognition of a new drying storage facility (DSC; Drying Steverer; hereinafter “Building storage facility of this case”) with the Defendant.

B. On April 21, 2008, the Defendant rejected the said application against the Plaintiff on the ground that it does not comply with the new guidelines for the implementation of agriculture and forestry projects (hereinafter “instant guidelines”) set forth in Article 4 of the Agricultural and Forestry Project Implementation Regulation (No. 1291, Dec. 28, 2007; hereinafter “the instant guidelines”) for the reason that the said guidelines do not conform to the new guidelines for the implementation of agriculture and forestry projects set forth in the said guidelines (hereinafter “instant dispositions”).

[Reasons for Recognition]

Facts without dispute, entry in Gap's evidence of subparagraphs 1 through 4, Eul's evidence of subparagraphs 1 through 5 (including each number in the case of preliminary evidence) and the purport of the whole pleadings

2. Relevant statutes;

The entries in the attached Table-related statutes are as follows.

3. Determination on the legitimacy of the instant disposition

(a) Facts of recognition;

(1) RPC is a rice processing complex, which is processed and packaged by drying and cooking rice from products, and a SSCer is a dry storage facility that drying and storing rice from products.

(2) A new DSC business entity is recognized as a new DSC business entity, benefits, such as receiving a purchase fund or allocating the volume of rice purchased for public reserve products.

(3) According to the instant Guidelines, the new RPC business entity has clearly classified the criteria for new RPC business entity and the criteria for recognition of DSC business entity. While the new RPC business entity has established a regional standard to secure at least 1,00 stories of rice for each Si/Gun and at least 2,00 stories of rice for each raw material, and the new DSSC business entity is excluded from the new criteria for recognition as new business entity and new area of rice processing facilities and excessive area when it excludes the new business entity from the criteria for recognition as new business entity and new business entity.

(4) The government-accredited RPC 4 and one DSC are required to secure a total of 13,000 ha per unit for RPC and 1,000 ha for DSC, and the total area of 13,775 ha for Asan in 207.

(5) The Ministry for Food, Agriculture, Forestry and Fisheries, from 191 to 2001, established 343 rice processing complexes (RPCs) that can en bloc deal with the purchase, building, storage, processing, and sale of rice from producers for the purpose of improving the distribution structure of rice, improving the quality of rice, and stabilizing the price. However, since 2005, 276 RPCs are currently operated by promoting structural improvement, such as the integration of RPCs, and more than 200 RPCs have been integrated into 20 RPCs until 2013, to prepare for openization, enhance competitiveness, and strengthen policy support, and accordingly, strict examination is conducted in consideration of facility capacity, regional standards, etc.

(6) The Operation Council of the RPC (DSC) in Busan City judged that the review result of the Asan City was appropriate for the Plaintiff’s failure to meet the 225th century.

[Reasons for Recognition]

The facts without dispute, Gap evidence Nos. 1 through 4, Eul evidence Nos. 1 through 5 (including each number in the case of additional numbers), the fact inquiry results of the court of first instance to the Ministry for Food, Agriculture, Forestry and Fisheries, and the purport of whole pleadings.

B. Determination

(1) Whether an intrusion restriction standard was established

The Plaintiff asserts to the effect that the establishment of an indivative restriction standard, “to secure the area of 1,00 stories or more” as the instant directives and the instant guidelines based thereon, is unlawful. However, the instant guidelines relate to agricultural and forestry businesses that support the purchase of rice in rice at rice processing complexes in order to secure the government’s rice market and promote the distribution function of rice in mountainous areas, and thus, do not directly restrict the rights and interests of the people as a basic date for the designation of a person eligible for the project to achieve business objectives most efficiently, and thus, do not constitute an indivable restriction standard in nature.

(2) Whether the instant guidelines are legal or not

(A) The plaintiff's assertion

Although the instant Guidelines is in the form of the Guidelines, it shall be deemed as effective as an external binding legal order by supplementing the contents of the Guidelines in accordance with the delegation of Article 22(3) of the Grain Management Act and the Enforcement Rule of the Grain Management Act, and combining them. In accordance with the legal principles of self-regulation in administration, the legal nature of the instant Guidelines may be recognized. Therefore, in the instant case where the Plaintiff satisfies the standard for the area of rice secured rice secured as raw materials required by the instant Guidelines, the instant disposition that rejected the Plaintiff’s application based on the standard for securing the area of the agenda for each place, which is not stipulated in the instant Guidelines, is unlawful.

(B) Determination

The so-called administrative rule generally takes effect only within the administrative organization, but does not have external binding force. However, if a provision of a statute grants a specific administrative agency the authority to determine the specific matters of the statute, and does not specify the procedure or method of exercising the authority, and so the delegated administrative agency specifically determines the matters to be the contents of the statute in the form of administrative rule, such administrative rule has the function to supplement the contents of the statute by providing the administrative agency with the authority to supplement the specific matters of the statute, and thus, it becomes effective as an external binding legal order in combination with the provision of the statute.

However, Article 22 of the Grain Management Act provides that the Minister of Food, Agriculture, Forestry and Fisheries shall, for the purpose of improving the distribution structure and quality of rice and stabilizing price of rice, foster rice distribution business in charge of comprehensive functions of distributing rice, such as the purchase of rice from producers, construction, sorting, storage, processing, and sale of purchased rice (paragraph (1)), and that an agricultural cooperative or a person recognized as capable of efficiently performing the function of distributing rice under paragraph (1) shall be provided with funds necessary for building, storing, processing, distributing, and selling rice within budgetary limits or grant subsidies (Paragraph (2)), and that an administrative agency shall provide for matters necessary for financing and assistance under paragraph (2) within the scope of its budget for the purpose of establishing the purpose of the above Act and its Enforcement Rule of the Grain Management Act, provide for the purpose of establishing the Act and its subordinate statutes for the purpose of purchasing and managing rice, and that it can not be seen that there is no specific provision of the above Act and its Enforcement Rule for the purpose of establishing the Act and its Enforcement Rule.

On the other hand, in accordance with the legal principles of the administrative self-regulation, in regard to whether the administrative guidelines of this case falling under the administrative office's administrative affairs rules, as seen earlier, can be recognized as legal nature, the so-called administrative self-regulation means that the administrative agency is bound by the same disposition in accordance with the above principles when it establishes and implements the administrative rules, which are the general rules for the exercise of discretionary power, to secure uniform and equal exercise of discretionary power. This is a legal principle that is recognized as distinct from the binding act under the administrative rules which is subject to strict restraint under the original laws and regulations. The administrative agency generally takes an administrative disposition in accordance with the administrative rules which are set forth in the administrative rules which are the discretionary rules in the same case. Thus, it is reasonable to see that the administrative disposition goes beyond the limits of discretionary power if it is applied differently only to a specific party without complying with the above disposition guidelines, and furthermore, it cannot be deemed that the administrative disposition is unlawful merely because the administrative disposition violated the above administrative rules (see, e.g., Supreme Court Decision 93Nu5635, Oct. 14, 194).

(3) Whether the instant disposition was a deviation or abuse of discretionary power

(A) The plaintiff's assertion

In light of the purpose and purport of Article 22 of the Grain Management Act and the instant Guidelines, the instant disposition is not only against the principle of self-regulation and the principle of equality of the administration, but also against the regional imbalance, the inconvenience of production farmers, etc., and constitutes a case of deviation from and abuse of discretionary authority.

(B) Determination

This case’s guideline provides that 3,00 p.m. shall be secured for the area of rice for new rPC and DSC standards, while the fact that rPC’s dPC’s dPC’s dPC’s dPC’s dPC’s dPC’s dPC’s dPC’s dPC’s dPC’s dPC’s dPC’s dPC’s dPC’s dPC’s dPC’s application for new dSSC’s dPC’s dPC’s examination, and that dPC’s dPC’s dPC’s dPC’s dPC’s size and dPC’s dPC’s dPC’s dPC’s dPC’s dPC’s dPC’s standard can be used in comparison with the Plaintiff’s new standard for dPC’s standard for recognition unless the size of the dPC’s dPC’s area is clearly established.

Notwithstanding the above circumstances, we examine whether the Defendant’s disposition of this case constitutes a case where the Defendant deviates or abused discretion in violation of the principle of self-regulation and the principle of equality in administration, on the ground that it did not satisfy the standard of area per place of issue not specified in the instant guidelines.

The term "self-detention of an administration" means a detention under which an administrative agency must take the same disposition with respect to the same kind of case as seen earlier. As such, in general, it is premised on the existence of an administrative precedent that is subject to comparison in the same case. However, in cases where the administrative rules are publicly announced externally and there is a legally-protected trust to the people, the administrative rules itself may serve as the basis for self-detention of an administration from the point of legal stability, and in cases where the administrative rules established to realize the principle of equality in discretionary area violate the administrative rules established to realize the principle of equality, such administrative dispositions shall be deemed illegal by abusing or abusing discretionary power, unless there are any special circumstances.

In the instant case, the instant guidelines are based on Article 4 of the Regulations on the Implementation of Agricultural and Forestry Projects (Ordinance No. 1291, Dec. 28, 2007; hereinafter “the instant directives”) and are publicly announced as the Defendant himself/herself recognized in the 2008 Guidelines for the Implementation of Agricultural and Forestry Projects, and according to the entire purport of the entries and arguments in Eul’s Evidence No. 2, the instant guidelines are issued externally with the registration number assigned, and each local government with the authority to select new RPC and DSC business entities (the head of a Si/Gun, upon the request of the desired business entities, submitted them to the Mayor/Do Governor after the first examination of whether the criteria for examination are appropriate, and the Mayor/Do Governor, upon the examination of the two-lane review criteria, failed to meet the requirements for self-determination of new business entities for the selection of new business entities through deliberation by the Agricultural and Forestry Council, and thus, the instant guidelines are not unlawful, considering that it did not meet the requirements for self-determination of new business entities for the selection of new business entities.

However, unlike the case of binding acts, self-regulation in administration means flexible detention that can change existing administrative practices to a new administrative practice by reasonable judgment according to changes in administrative circumstances. Thus, this case's guidelines can be interpreted and operated for a purpose consistent with this case's guidelines, if there are changes in circumstances such as changes in the agricultural environment. However, it is not sufficient to recognize that there is an objective change in circumstances as above with the result of inquiry into the Ministry for Food, Agriculture, Forestry and Fisheries at the court of first instance and the Ministry for Food, Agriculture, Forestry and Fisheries, and even if there is a change in circumstances that may bring about a change in family affairs, it is not reflected in the above guidelines of this case since it is difficult to see that there was such change in circumstances after the preparation of the instant guidelines, which was published by the Minister for Food, Agriculture, Forestry and Fisheries prior to the year 2008 by the Minister for Food, Agriculture, Forestry and Fisheries, and thus, it cannot be deemed that there are special circumstances to apply the standard of area per location different from the guidelines of this case.

4. Conclusion

Therefore, the plaintiff's claim of this case is accepted on the grounds of its reasoning, and the judgment of the court of first instance is unfair on the grounds of its conclusion, and it is so decided as per Disposition with the cancellation of the judgment of the court of first instance and the disposition of this case.

Judges Cho Soo-soo (Presiding Judge) Maximum index