Plaintiff 1 and one other (Law Firm Hancheon, Attorneys Go Ji-hee et al., Counsel for the plaintiff-appellant)

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

July 5, 2013

Seoul Administrative Court Decision 2012Guhap13917 decided October 16, 2012

1. Revocation of a judgment of the first instance;

2. The Defendant’s disposition of refusal to recognize the addition of holders of important intangible cultural heritage Article 57 against the Plaintiffs on February 14, 2012 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 February 23, 1978, pursuant to Article 8(1) of the former Cultural Heritage Protection Act (wholly amended by Act No. 3644 of Dec. 31, 1982), the Defendant acknowledged that the Gyeonggi-gu as an important intangible cultural heritage No. 57. Pursuant to Article 8(2) of the same Act, the Defendant recognized Nonparty 1, Nonparty 2, and Nonparty 3 as the holder (hereinafter “owner”). On November 11, 1997, the Defendant recognized Nonparty 4 as the holder on November 11, 1997, when Nonparty 3 died, and Nonparty 1 was unable to receive normal initiation due to health aggravation on April 20, 2005.

B. Meanwhile, between October 10, 1990 and November 30, 2001, the Defendant selected the Plaintiffs, who were Nonparty 3’s third parties, and Nonparty 5, Nonparty 2’s third parties, Nonparty 6, and Nonparty 7 as assistant instructors for successor training, respectively, under the former Enforcement Decree of the Cultural Heritage Protection Act.

C. On January 28, 2011, the Defendant: (a) formulated an investigation plan for the designation of important intangible cultural heritage (approval, etc. of holders) in 2011; (b) conducted an investigation for the additional recognition of holders in need of Gyeonggi-do; and accordingly, (c) conducted an investigation by submitting relevant data, such as curriculum, major transmission activities, details of transmission education activities, etc. from five assistant instructors for successor training, including the Plaintiffs; and (d) conducting an investigation by conducting an individual skill assessment and interview (hereinafter “instant investigation”).

D. On January 27, 2012, based on the results of the instant investigation, the Defendant deliberated on whether to recognize the additional validity of the Gyeonggi-gu Residents’ need to be recognized by the Cultural Heritage Committee subcommittee (hereinafter “Cultural Heritage Committee”) on January 27, 2012, and decided that “The Cultural Heritage Committee shall not recognize the additional possession of the holders since the Gyeonggi-do Residents’ need not recognize the fact that there is no concern for the transmission to two holders.”

E. Accordingly, on February 14, 2012, the Defendant notified each of the Plaintiffs that the additional recognition of the Gyeonggi-gu Residents’ Republic of Korea was rejected (hereinafter “instant disposition”).

【Fact-finding, Gap’s entries in Gap’s Evidence Nos. 1, 2, 3, 6, 7 (including each number; hereinafter the same shall apply), and the purport of the whole pleadings

2. Whether the lawsuit of this case is lawful

A. The defendant's main defense

The plaintiffs do not have the right to request the additional recognition of the holders, and each notification made by the defendant to the plaintiffs is merely a reply informing of the results of the investigation of this case and thus does not affect the rights and obligations of the plaintiffs, and thus does not constitute an administrative disposition subject to appeal litigation. Accordingly, the lawsuit of this case is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) If an administrative agency’s refusal of an action following a citizen’s affirmative filing of an application constitutes an administrative disposition that is subject to an appeal litigation, the filing of the application must be an exercise of public authority or an equivalent administrative action; the refusal must cause changes in the applicant’s legal relationship; and the citizen must have the right to file an appeal in accordance with the law or sound reasoning to demand that the citizen stop such action; and the existence of a right to file an appeal, which serves as a prerequisite for recognizing a disposition of rejection, must be determined abstractly by examining, in a specific case, the applicant’s right to file an appeal without considering who is the applicant’s right to file an appeal; and the applicant’s right to file an appeal beyond a simple response to the application, does not mean the right to obtain the satisfactory result of accepting the application; thus, if a citizen’s filing of an application appears to have recognized an individual right to file an appeal against an administrative action, such refusal shall be deemed a disposition that is subject to an appeal litigation; and specifically, whether the application can be cited (see, e.g., Supreme Court Decision 2009Du36368, etc.).

Meanwhile, according to Article 24(1) and (2) of the Cultural Heritage Protection Act (hereinafter “the Act”), the Defendant may designate an important intangible cultural heritage as an important intangible cultural heritage upon deliberation by the Cultural Heritage Committee, and recognize a holder of the important intangible cultural heritage. Article 24(3) and (5) of the same Act provides that a person, other than a holder already recognized, may additionally recognize a holder of the important intangible cultural heritage; and that matters necessary for the standards, procedure, etc. for the designation of the important intangible cultural heritage; and for the recognition standards, procedure, etc. for the holders of important intangible cultural heritage and honorary holders, shall be delegated to the Presidential Decree. Accordingly, Article 12(1)1 of the Enforcement Decree of the Act provides that “a person who, in its original form, can acquire, preserve, and realize, the skills or artistic skills of the important intangible cultural heritage.” Article 12(2) of the same Act provides that where the Defendant intends to recognize a holder of important intangible cultural heritage, he/she shall require at least three relevant experts, such as members or expert members of the Cultural Heritage Committee in the relevant field.

2) According to the aforementioned relevant laws and regulations, the issue of whether to grant additional recognition to holders and to investigate the additional recognition belongs to the Defendant’s discretion, and there is no express provision regarding the application and procedure for the additional recognition to holders.

However, even in cases where discretionary authority is recognized, an administrative agency is legally obligated to comply with its limitation without deviation or abuse in making a disposition on its discretion, and accordingly, an individual has the right or legal interest to demand the administrative agency to exercise its discretionary power in accordance with appropriate procedures in light of the purpose and purport of the laws and regulations that grant the administrative agency the right to dispose of.

In this case, the defendant had the authority to additionally recognize the holders of intangible cultural heritage, and the plaintiffs filed an application for additional recognition of holders, such as submitting an application or a report on data on recognition of holders, to obtain additional recognition as holders, and accordingly, the defendant is obligated to take a disposition as to the additional recognition of holders of intangible cultural heritage, even if the defendant did not have any obligation to additionally recognize the plaintiffs as holders of intangible cultural heritage, by exercising discretionary power that does not deviate from or abuse the limits of discretionary power, and by applying for a legitimate response without abuse of discretionary power. Accordingly, the defendant has the right to request a legitimate response without abuse of discretionary power.

Accordingly, the plaintiffs can seek the revocation of the disposition of rejection against the limitation of discretion or abuse of discretionary power based on the above response right. As seen below, the plaintiffs in this case seek the revocation of the disposition of this case by asserting that the disposition of this case is an illegal disposition that deviates from or abused discretionary power, the lawsuit of this case is a lawsuit against the rejection disposition that is subject to appeal.

Therefore, all of the defendant's defenses are without merit.

3. Whether the instant disposition is lawful

A. The plaintiffs' assertion

1) After the Defendant decided not to recognize the fact that he did not recognize the fact that he did not conduct the investigation of this case, the disposition of this case for the same reason that there was no fact that there was no faction, thereby violating the trust of the Plaintiffs, and even though there was a need for additional recognition of the holder as a result of the decrease of three to two persons, the disposition of this case is unlawful because it violated the principle of proportionality by infringing on the honor, freedom of occupation, property rights, etc. of the Plaintiffs, and thus violating the principle of proportionality.

2) If the defendant deems that there is value that the plaintiffs can be recognized as a holder, he/she shall pre-announce the contents to be deliberated prior to the deliberation by the Cultural Heritage Committee in the Official Gazette for at least 30 days, but the above pre-announcement was not made, so the disposition

(b) Fact of recognition;

1) The Defendant, who became an honorary holder of Nonparty 1, began to hold a discussion on the additional recognition of the holder since 2005, since three to two holders of Gyeonggi-gu need to be reduced.

2) However, as a result of controversy over whether each holder should select a holder by reason of the fact-finding, the Defendant received the service result by requesting the Korea Association of M&A to provide academic research services on whether to recognize the fact-finding on July 2009.

3) The Defendant reported the service result to the Cultural Heritage Committee, and decided that the Cultural Heritage Committee cannot recognize the spread to Gyeonggi-do residents on the basis thereof.

4) Accordingly, on June 13, 2011, in order to conduct the instant investigation, the Defendant requested all five assistant instructors for successor training, including the Plaintiffs, to cooperate in the investigation for additional recognition of holders. The Plaintiffs submitted an application or a data report including a resume, upon the said request, submitted the details of the activity performance from 2001 to 2010. On June 21, 201, the Defendant was assessed as a way of performing by selecting three rice among the Gyeonggi Residents’ Week.

5) On October 14, 2011, the Defendant referred the Cultural Heritage Committee to the Cultural Heritage Committee for deliberation as to whether to recognize the addition of holders of Gyeonggi-do residents. However, when the process of deliberation requests recognition of a genetic wave or a civil petition on certain personal matters among the persons subject to investigation was submitted several times, the Cultural Heritage Committee extended its discussion to investigate and examine the civil petition on the said personal matters.

6) However, the Cultural Heritage Committee deliberated again on January 27, 2012 when it did not conclude a civil petition regarding the above personal matters as a result of the investigation, and rejected further recognition of the holder on the ground that “the Gyeonggi Civil Code does not recognize the current wave and there is no risk of transmission because two holders are holding the same.”

7) On the other hand, the Defendant: (a) formulated an investigation plan for the designation of important intangible cultural heritage (recognition, etc.) in 201; (b) conducted an investigation for the additional recognition of holders by selecting a board, spawal, spawal, spawal, spawal, spawal as well as Gyeonggi-do; and (c) conducted an investigation for the designation of important intangible cultural heritage in 201; and (d) the additional recognition of holders was

【Ground of Recognition】 Evidence Nos. 4, 5, 9-5, 1 through 8, and Non-Party 8’s witness of this Court

C. Determination

In full view of the above-mentioned facts and the above-mentioned evidence, it is reasonable to view the instant disposition as unlawful as a response that deviates from or abused the bounds of discretion.

1) The Defendant promoted it from around 2005 in order to additionally recognize one person holding the need for training. Around 2009, the Defendant concluded that there was no shock on the need for training as well as on the existence or absence of the need for training. Accordingly, the circumstance that there was no shock on the need for training in the instant disposition cannot be considered in light of the fact that: (a) the instant investigation was conducted with respect to all instructors conducting training including the Plaintiffs; and (b) the fact that there was no shock on the need for training in the instant disposition.

2) In addition, if it is not necessary to additionally recognize the owner as a result of the fact that there is no risk of spreading only two holders, the defendant did not have any need to conduct the investigation of this case from the beginning of the beginning of the year, and the defendant, who has formulated the "Plan for Designation of Important Intangible Cultural Heritage (Recognition, etc.)" in 2011, conducted the investigation of this case over a period of about one year from January 28, 201 and conducted two deliberations and conducted the disposition in this case, and therefore, it is difficult to view that there is no risk of transmitting only two holders as a legitimate ground for disposition.

3) As a result of the instant investigation, the rating points and assessment basis for each item on the transmission ability (such as the tradition of the Changju Law, the accuracy of the Gain law, the level of creative law, and the initiative of the successor) and the transmission environment (the health status of the predecessor and the will of the successor) were derived. Despite the fact that the Cultural Heritage Committee could make a judgment on whether to grant additional recognition as a holder based on the above, it made the instant disposition that does not fit the results of the instant investigation on the ground of lawful disposition as seen earlier, and did not explain other grounds for disposition otherwise (However, during the instant lawsuit pending, the Defendant argued that the Cultural Heritage Committee has deliberated to the effect that the instant lawsuit is too excessive competition, and that there is no need for additional recognition as a holder because of the practical ability of the persons subject to investigation, but did not add or modify the grounds for disposition).

4) Since the instant investigation was conducted by the method of specific evaluation, such as practical evaluation and interview evaluation beyond the submission of data, the Plaintiffs, as well as the Plaintiffs, have a considerable expectation of being additionally recognized as a holder when receiving a higher score in each of the above evaluations. As seen earlier, the instant disposition merely citing the circumstances that cannot be a legitimate ground for disposition as seen earlier, and thus, cannot be deemed as legitimately responding to the Plaintiffs’ right to request response.

4. Conclusion

Therefore, even if the defendant does not have any obligation to recognize the plaintiffs as a holding company of Gyeonggi-gu, the defendant has a duty to proceed with the procedure by exercising discretion that does not deviate from or abuse the limits of discretion regarding the holding company's additional recognition, and to take a disposition as to the application based on objective and reasonable grounds. Since it violated this, the plaintiffs' claim should be accepted due to reasons, since the judgment of the court of first instance is unfair differently from this conclusion, the judgment of the court of first instance is revoked and the disposition of this case is revoked. It is so decided as per Disposition.

[Attachment Omission of Related Acts]

Judges Cho Young-chul (Presiding Judge)