(영문) 서울행정법원 2016.5.13. 선고 2015구합77936 판결

1. The Defendant’s revocation of the revocation of recognition as a holder of important intangible cultural heritage, which the Plaintiff rendered on September 23, 2015.

2. The costs of the lawsuit are assessed against the defendant.

Purport of claim

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. B is a summary of labor in the Gyeongnam area, and the defendant designated B as an important intangible cultural item B on December 1, 1985, and recognized D, an incorporated association, on November 1, 1986, as an important intangible cultural item B, and on July 1, 1992, as an important intangible cultural item B, respectively.

B. The Plaintiff was issued a summary order of KRW 1 million (No. 2014 high-ranking 2014 high-ranking 65777, Changwon District Court) for the following criminal facts at the Changwon District Court’s branch: (a) a summary order of KRW 1 million (No. 2015, Jan. 5, 201; (b) and the said summary order became final and conclusive around that time.

【Criminal Facts】

A. From 1978, the Defendant is the president of the 25th meeting to administer the business affairs of the 20th meeting. Around May 31, 2010, the Defendant received 1,000 won from the 25th meeting of the 25th meeting of the 20th meeting of the 20th meeting of the 2nd meeting of the 2nd meeting of the 2nd meeting of the 2nd meeting of the 2nd meeting of the 1st meeting of the 2nd meeting of the 2nd meeting of the 2nd meeting of the 5th meeting of the 2nd meeting of the 2nd meeting of the 2nd meeting of the 2nd meeting of the 2nd meeting of the 5th meeting of the 2nd meeting of the 2nd meeting of the 5th meeting of the 1st meeting of the 2nd meeting of the 2nd meeting of the 1st meeting of the 2nd meeting of the 2nd meeting of the 2nd meeting of the 2nd meeting of the 2nd meeting of the 2nd meeting of the 2nd meeting of the 7th meeting of the 3th meeting.

C. The Defendant held the I Cultural Heritage Committee and resolved to cancel the recognition of B holders of important intangible cultural heritage to the Plaintiff. On the 23th of the same month, the Defendant issued a decision to cancel B holders’ recognition (hereinafter “instant disposition”) in accordance with Article 31(2)2 of the Cultural Heritage Protection Act on the ground that “the final and conclusive criminal judgment pertaining to performance, exhibition, examination, etc. of traditional culture” was final and conclusive.

[Ground of Recognition] Unsatisfy, Gap evidence Nos. 7, 9, 10 (including paper numbers) and the purport of the whole pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Non-existence of grounds for disposition

Article 31(2)2 of the Cultural Heritage Protection Act, which is premised on criminal punishment as a holder of an important intangible cultural heritage, is not applicable to the Plaintiff’s disposition, not as a holder of an important intangible cultural heritage B. Therefore, the instant disposition is an illegal disposition that does not have any grounds for disposition.

(ii) the deviation and abuse of discretionary power;

In light of the fact that the illegality of the crime committed by the Plaintiff is not significant, that the transmission of B might be difficult due to the disposition of this case, and that the Plaintiff’s lifelong efforts to discover and succeed to B, the disposition of this case is an illegal disposition that the Defendant deviates from and abused its discretion.

(b) Related statutes;

Attached Form is as shown in the attached Form.

C. Determination

1) Non-existence of grounds for disposition

Article 24(2) of the Cultural Heritage Protection Act and Article 12 subparag. 1 of the Enforcement Decree of the same Act stipulate that a person who can master, preserve, and realize the skills or artistic talent of an important intangible cultural heritage shall be recognized as a holder of an important intangible cultural heritage. Article 31(2)2 of the Cultural Heritage Protection Act provides that a holder of an important intangible cultural heritage may cancel the recognition of a holder of an important intangible cultural heritage if he/she is sentenced to a fine or heavier punishment in connection with performance, exhibition, examination, etc. of traditional culture. In other words, in full view of the contents of each provision, where a holder of an important intangible cultural heritage is sentenced to a fine or heavier punishment in relation to performance, exhibition, examination, etc. of traditional cultural heritage, he/she may be deemed inappropriate to transmit the important intangible cultural heritage through such act. However, the same is likely to be assessed as well as the need thereof. Accordingly, the requirements for cancellation of the recognition of an important intangible cultural heritage, regardless of what status the holder is subject to punishment, should be interpreted.

(ii) the deviation and abuse of discretionary power;

A) Criteria for determination

Intangible cultural heritage refers to intangible cultural works of outstanding historical, artistic, or academic value, such as drama, music, dance, play, food, and craft skills. It is necessary to inherit national culture, local culture, etc. by preserving such intangible cultural heritage, and contribute to promoting the cultural improvement of the people as well as to the development of human culture by utilizing it. In such purport, the Cultural Heritage Protection Act and the Enforcement Decree of the same Act provide for a system for recognition of holders of intangible cultural heritage so that intangible cultural heritage can be transmitted to intangible cultural heritage as holders of intangible cultural heritage by recognizing a person who can learn, preserve, and practice skills or arts of intangible cultural heritage in its original form as holders of intangible cultural heritage: Provided, That in cases where a holder of important intangible cultural heritage is not qualified as holders of important intangible cultural heritage due to a physical or mental disorder, the Cultural Heritage Protection Act and the Enforcement Decree of the same Act must impose a fine or heavier punishment on the Republic of Korea in relation to the performance, exhibition, examination, etc. of traditional culture, and if such sentence becomes final and conclusive by being sentenced to imprisonment without prison labor or heavier punishment for reasons other than those holding intangible cultural heritage and intangible cultural heritage for two years without special reasons.

B) In the instant case:

In light of the following circumstances recognized by the facts and the purport of the entire pleadings, it is reasonable to view the instant disposition as an illegal disposition that the Defendant deviatess from and abused discretion.

① Although the Plaintiff embezzled the performance subsidy and submitted a false report on the subsidies to the Defendant and was subject to criminal punishment, the Plaintiff appears to have failed to accurately understand the fact that the Plaintiff’s act was an offense, considering the Plaintiff’s act and the content of the Plaintiff’s act, which was not a legal expert (the Plaintiff was punished by a non-prosecution disposition issued by an order of re-investigation of the re-appeal procedure). Ultimately, considering the fact that the Plaintiff was deemed to have committed an offense in an unreasonable manner while promoting the promotion of the performance in the re-appeal procedure, the Plaintiff appears to have committed an offense, and the purpose of personal interest or the fact that there was no other unfair purpose, it is difficult to deem that the Plaintiff’s act was unlawful to the extent that it can be assessed as seen earlier.

② Rather, the Plaintiff appears to be able to contribute to the transmission of B as the only holder of B at the present (the Defendant is not only the Plaintiff’s ability, the ratio of participation is not high, but also the transmission of B is neglected, and the Plaintiff’s inherent initiative was led to the performance, and thus, the means to cancel the recognition of the holder against the Plaintiff is necessary for the transmission of B. However, the materials submitted by the Defendant alone is insufficient to acknowledge the above assertion, and there is no other evidence to acknowledge it. Even if the Plaintiff’s assertion is true, the recognition of the holder against the Plaintiff cannot be cancelled merely because it does not meet the requirements prescribed in Article 31(2) of the Cultural Heritage Protection Act and Article 18 subparag. 3 of the Enforcement Decree of the same Act).

③ In addition, the Plaintiff appears to have been working for the president of the Preservation Council prior to the designation as the holder of B on July 1, 1992, while drawing up B-related books and setting up B-sancts, etc. for a long period of time.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted for the reasons and it is so decided as per Disposition.