[1] The requirements for an administrative agency’s rejection of a citizen’s application may be an administrative disposition subject to an appeal litigation

[2] In a case where a landowner Gap filed an application for adjudication with the Administrator of the Cultural Heritage Administration pursuant to Article 30(1) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects, but the Administrator of the Cultural Heritage Administration rejected the application for adjudication on the ground that he/she does not bear an obligation to file an application for adjudication with the competent Land Tribunal pursuant to Article 30(2) of the said Act, the case holding that the above

[1] If an administrative agency’s rejection of a citizen’s petition is subject to an administrative disposition that is subject to an appeal litigation, the administrative agency’s right to request a citizen’s action should be the citizen. In a case where an administrative agency does not accept a citizen’s petition without such a basis, the rejection does not affect the applicant’s right or legal interest, and thus, it cannot be subject to an appeal litigation.

[2] In a case where a landowner Gap filed a request for adjudication under Article 30(1) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Act No. 11017, Aug. 4, 201; hereinafter “former Public Works Act”), but the Administrator of the Cultural Heritage Administration did not have the obligation to file an application for adjudication with the competent Land Tribunal under Article 30(2) of the former Public Works Act, the case holding that Article 83(2) of the Cultural Heritage Protection Act and Article 30(1) of the former Public Works Act apply only to the case where the Administrator of the Cultural Heritage Administration expropriates or uses land, etc. located within designated cultural heritage or protected areas pursuant to the former Public Works Act as he/she deems it necessary for the preservation and management of cultural heritage, on the ground that the Administrator of the Cultural Heritage Administration did not initiate the procedure for expropriation under the former Public Works Act, such as preparing land and goods protocols, and thus, the right to file an application for adjudication with the competent Land Tribunal cannot be acknowledged.

[1] Article 1 [General Administrative Disposition] and Article 2 (1) 1 of the Administrative Litigation Act / [2] Article 83 of the Cultural Heritage Protection Act; Articles 27 (1) and 30 (1) and (2) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works (Amended by Act No. 11017, Aug. 4, 201); Article 1 of the Administrative Litigation Act / [general Administrative Disposition] and Article 2 (1) 1 of the Administrative Litigation Act

[1] Supreme Court Decision 2005Du11104 Decided April 26, 2007

Plaintiff (Law Firm LLC, Attorneys Park Gi-sung et al., Counsel for the plaintiff-appellant)

The Administrator of the Cultural Heritage Administration (Attorney Jeong-ju, Counsel for defendant-appellant)

Seoul High Court Decision 2011Nu44701 decided September 19, 2012

The judgment below is reversed, and the plaintiff's appeal is dismissed. The total costs of the lawsuit after the appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. On May 11, 201, the lower court acknowledged that the Plaintiff filed a claim for adjudication under Article 30(1) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works (amended by Act No. 11017, Aug. 4, 2011; hereinafter “Public Works Act”), but on June 1, 201, the Cultural Heritage Administration had received the reply of this case from the Defendant on the ground that the Defendant did not have the obligation to file an application for adjudication with the competent Land Tribunal under Article 30(2) of the Public Works Act, on the ground that the designation of the cultural heritage and cultural heritage area of this case is deemed to have been approved and announced as project approval under Articles 20 and 22 of the Cultural Heritage Protection Act, and therefore, the reply of this case constitutes an appeal suit under Article 30(1) of the Public Works Act, and the Defendant is obligated to file an application for adjudication with the competent Land Tribunal. Accordingly, the lower court determined that the instant application for adjudication was unlawful.

2. However, the lower court’s determination is difficult to accept for the following reasons.

A. If an administrative agency’s rejection of a citizen’s application is subject to an administrative disposition that is subject to an appeal litigation, the administrative agency’s right to request an action must be the citizen. In a case where an administrative agency does not accept a citizen’s application without such right to request, the rejection does not affect the applicant’s right or legal interest, and thus, it cannot be subject to an appeal litigation (see Supreme Court Decision 2005Du1104, Apr. 26, 2007, etc.).

B. Article 25(1) of the Cultural Heritage Protection Act provides that "The Administrator of the Cultural Heritage Administration may designate important matters among souvenirs as a private site, scenic area, or natural monument after deliberation by the Cultural Heritage Committee." Article 27(1) provides that "The Administrator of the Cultural Heritage Administration may designate protective facilities or protection zones for the protection of cultural heritage, if especially necessary for the protection of the cultural heritage when it is designated pursuant to Article 23, 25, or 26, and Article 83 provides that "the Administrator of the Cultural Heritage Administration or the head of the local government may expropriate or use the land, buildings, standing trees, bamboo, or other structures located within the designated cultural heritage or protection zones thereof pursuant to the Public Works Act, if necessary for the preservation and management of the cultural heritage, (Article 1). Articles 23, 25 through 27 and 70 are designated pursuant to Article 27(1) of the Public Works Act, and the project approval and public notice of project approval pursuant to Article 20 and Article 26(2) of the same Act shall not apply to this case."

As above, the structure and contents of Article 83(1) of the Cultural Heritage Protection Act, which is premised on the application of Article 83(2) of the same Act, are ① Designation of cultural property or its protection zone is a limitation on public interest, which is the protection of cultural property, and does not themselves be subject to compensation for losses. ② Approval of a project refers to the determination of land, etc. for public projects as a project to expropriate or use land, etc. (Article 2 subparag. 7 of the Public Works Act). ③ Article 83(2) of the Cultural Heritage Protection Act appears to have the legislative purpose of Article 83(2) of the same Act to simplify the procedure of project approval for smooth implementation of the purpose project by prescribing special cases concerning the procedure of project approval as prescribed by the Public Works Act. ④ The latter part of Article 83(2) of the Cultural Heritage Protection Act excludes the application of the effective period of project approval under Article 23 of the Public Works Act from the perspective of securing budget, etc.

However, according to the records, since the defendant did not initiate the expropriation procedure under the Public Works Act regarding the land of this case, such as the preparation of land and goods protocols, the defendant cannot be deemed to have the right to apply for a ruling to the competent Land Tribunal. Therefore, even if the defendant refused the above claim of the plaintiff, the rejection does not affect the plaintiff's rights or legal interests, and thus, the reply of this case does not constitute a rejection disposition subject to appeal.

C. Nevertheless, the court below held that the reply of this case constitutes a rejection disposition subject to appeal litigation, and revoked the judgment of the court of first instance which dismissed the lawsuit of this case as it is illegal, and decided on the merits. In this case, the court below erred by misapprehending the legal principles on the rejection disposition subject to appeal litigation, thereby affecting the conclusion of the judgment. The ground of appeal pointing this out

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed without further proceeding to decide on the remaining grounds of appeal. Since this case is sufficient for the Supreme Court to directly render a judgment, the lawsuit of this case shall be dismissed as it is unlawful, and thus, the judgment of the court of first instance is just and there is no ground for appeal by the plaintiff, and the total costs of the lawsuit after the appeal shall be borne by the losing party. It is so decided as per

Justices Min Il-young (Presiding Justice)