Plaintiff (Law Firm Tae, Attorneys Seo-young et al., Counsel for the plaintiff-appellant)

The head of Gangseo-gu Seoul Metropolitan Government (Law Firm Han & Han, Attorneys Kim Tae-ok et al., Counsel for defendant-appellant

November 5, 2010

1. The part of the conjunctive claim in the instant lawsuit is dismissed.

2. The plaintiff's primary claim is dismissed.

3. The costs of lawsuit shall be borne by the Plaintiff.

With respect to the imposition of enforcement fines of KRW 14 million against the Plaintiff on November 14, 2008 by the Defendant, the imposition of enforcement fines of KRW 14 million against the Plaintiff on November 14, 2008 is confirmed to be null and void, and the said imposition is revoked primarily

1. Details of the disposition;

A. On June 7, 2007, the Plaintiff acquired the instant land by obtaining permission for a land transaction contract from the Defendant with respect to one parcel of land, other than 1624m2 in the Gangseo-gu Seoul Metropolitan Government ( parcel number omitted) for the purpose of using the business (gas filling station operation).

B. However, the Defendant issued an order to use the instant land to the Plaintiff on August 5, 2008 on the ground that the Plaintiff leased the instant land to the Seoul Special Metropolitan City Private Passenger Transport Business Association (hereinafter “SP”) for the purpose of permission for the said land transaction contract, and issued a notice of imposition of enforcement fines on September 19, 2008, and issued a disposition imposing 14 million won for enforcement fines pursuant to Articles 124 and 124-2 of the former National Land Planning and Utilization Act (amended by Act No. 9442, Feb. 6, 2009; hereinafter “National Land Planning Act”).

[Reasons for Recognition] Facts without dispute, Gap evidence 1-1, 2, Gap evidence 2-3, Gap evidence 4-1, 2-2, Gap evidence 5-1, 2, Gap evidence 10-1, 2, and 3, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The Defendant’s disposition of this case is unlawful for the following reasons, and thus, the Defendant’s primary confirmation of invalidity of the disposition of this case and its preliminary revocation is sought.

(1) Upon receiving the Defendant’s performance order, the Plaintiff completed the Defendant’s performance order prior to the instant disposition, such as submitting an opinion to the effect that, on October 2, 2008, the Plaintiff transferred gas filling stations’ business registration and succession to business status from the Nonparty Cooperative under the Plaintiff’s name, and completed correction.

However, the Defendant issued the instant disposition on November 14, 2008, on the ground that the registration of the establishment of chonsegwon in the name of the non-party partnership as to the instant land was not cancelled, by November 10, 2008, to the Plaintiff, by which the Plaintiff could prove the fact that the Plaintiff directly operates the gas filling station, and upon the lapse of the above period, issued the instant disposition on November 14, 2008. If the Defendant requested the Plaintiff to cancel the registration of the establishment of chonsegwon as a performance order, the Plaintiff should have given sufficient time to deal with legal issues between the non-party union and the non-party union. If it is difficult for the Plaintiff to promptly cancel the registration of the establishment of chonsegwon, the Defendant did not provide sufficient time and alternative measures to the Plaintiff, but did not provide sufficient opportunity for supplementation.

(2) Article 124-3(3) of the Enforcement Decree of the National Land Planning and Utilization Act (hereinafter “Enforcement Decree of the National Land Planning and Utilization Act”) is null and void as it goes beyond the scope of delegation under Articles 124(1) and 124-2(2) of the National Land Utilization Act, a mother corporation. Accordingly, the instant disposition based on this is unlawful, and the meaning of “lease” under Article 124-3(3)2 of the Enforcement Decree of the National Land Planning and Utilization Act refers to the case where the land itself is leased to another person. Thus, the instant case does not constitute this case.

B. Judgment on the main claim

(1) In order for an administrative disposition to be deemed null and void as a matter of course, the mere fact that there is an illegality in the disposition is insufficient. The defect must be objectively apparent and serious in violation of the important part of the law. In determining whether the defect is significant and apparent, the purpose, meaning, function, etc. of the law should be examined from a teleological perspective as well as reasonable consideration of the specificity of the specific case itself (see Supreme Court Decision 2007Du11979, Jan. 10, 2008).

(2) According to the Plaintiff’s assertion, if the Plaintiff directly operated the gas filling station at the time of the instant disposition, it appears that the registration of the establishment of the right to lease on a deposit basis under the name of the Nonparty Union would remain to have been revoked, and the Defendant would not be deemed to have operated the gas filling station directly. In light of the fact that the Plaintiff or the Nonparty Union did not submit any data regarding the cancellation of the registration of the right to lease on a deposit basis until November 10, 2008, which was granted by the Defendant, the Defendant’s determination was made on the ground that the registration of the establishment of the right to lease on a deposit basis under the name of the Nonparty Union, which was difficult to be done by the Plaintiff

In addition, according to the above facts, the defendant ordered the plaintiff to perform his duty to use on August 5, 2008 and issued the disposition of this case on November 14, 2008 over three months. In light of the contents of the obligation to directly operate the gas filling station, etc., the above period is deemed to be a considerable period necessary for performing the duty, and the plaintiff submitted a written consent to use the land (Evidence A(Evidence A 13) on October 1, 2008 prepared by the non-party association and did not submit any data on the cancellation of the registration of the right to lease on a deposit basis by November 10, 2008, and it cannot be deemed as a ground for invalidation of the disposition of this case. Thus, it cannot be deemed as a ground for invalidation of the disposition of this case.

(3) In view of the overall provisions of relevant laws, such as Articles 124(1) and 124-2(1) and (2) of the National Land Utilization Act, and Article 124-3(3)1 through (4) of the Enforcement Decree of the National Land Utilization Act, it is difficult to view that it exceeded the scope of delegation under Articles 124-3(3) of the Enforcement Decree of the National Land Utilization Act, and Articles 124-3(1) and 124-2(2) of the National Land Utilization Act.

In addition, there is no dispute between the parties that the non-party union operated a gas filling station on the land of this case, and according to the evidence Nos. 1-1 and 2-2, as to the land of this case, the registration of the establishment of a right to lease on a deposit basis under the name of the non-party union was completed on June 22, 2007, and was maintained until the time of the disposition of this case. This constitutes "land lease" under Article 124-3 (3) 2 of the Enforcement Decree of the National Land Utilization Act.

(4) Therefore, the Plaintiff’s primary argument that the instant disposition is void as a matter of course is without merit.

C. Determination on the conjunctive claim

(1) As to the Plaintiff’s conjunctive claim seeking revocation of the instant disposition, the Defendant’s instant lawsuit is deemed unlawful as it was filed even when the period for filing the lawsuit expired, and thus, examined as to the instant claim.

(2) According to Article 20(1) of the Administrative Litigation Act, in a case where an administrative appeal is filed, a lawsuit shall be filed within 90 days from the date of receipt of the original copy of the written adjudication on administrative appeal. However, in such a case where the request for administrative appeal itself is unlawful as the period for filing an administrative appeal expires, the period for filing an

However, Article 27 (1) of the Administrative Appeals Act provides that "An administrative appeal shall be filed within 90 days from the date when he/she becomes aware of the disposition." According to the statements in Gap evidence 10-1 through 4, evidence 19-1 and 2, the plaintiff filed an administrative appeal seeking the cancellation of the disposition in this case on March 6, 2009 after the receipt of the disposition in this case on November 19, 2008 and the lapse of 90 days thereafter. The decision on May 25, 2009 (the ruling was sent to the plaintiff on June 23, 2009) on the administrative appeal (the ruling was delivered to the plaintiff on June 23, 2009) and then on August 31, 2009, it is clear that the period for filing the lawsuit in this case is more than the period for filing the lawsuit in this case with the plaintiff's seal affixed thereon.

(3) On December 3, 2008, the plaintiff filed an objection to the disposition of this case with the defendant around December 10, 2008, the defendant notified the result of the objection, and the plaintiff filed an administrative appeal within 90 days from the notification of the result of objection. Thus, the plaintiff asserted that the claim for administrative appeal is lawful. However, the notice of the imposition of enforcement fine of this case (No. 10-1 of the evidence No. 10 of November 14, 2008 and the notification of the imposition of enforcement fine of this case can be notified to the head of the Gu within 30 days from the date of receipt of the notification of the disposition, and the plaintiff can file an administrative appeal or administrative litigation within 90 days from the date of notification of the result of the objection (No. 14 of the notification of the disposition of this case). Thus, the plaintiff's objection cannot be viewed as being a separate one of the procedures of national land planning and the determination of 20-14 days from the date of receipt of the above disposition.

3. Conclusion

Therefore, the part of the conjunctive claim in the lawsuit of this case is unlawful, and it is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

[Attachment]

Judges Maximum Weather Conditions