2013Nu1059 Revocation of revocation of permission for use

The Seoul Special Metropolitan City riding Association

The Seoul Metropolitan Government Director of Sports Facilities Management Business

Seoul Administrative Court Decision 2012Guhap18448 decided March 28, 2013

December 13, 2013

January 17, 2014

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The revocation of the permission granted by the defendant against the plaintiff on May 30, 2012 shall be revoked.

1. The reasoning for the court’s explanation concerning this case is as follows 2. The part of the reasoning for the judgment of the court of first instance is modified as stated in Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act, except for addition of the following 3.3.

2. Parts to be corrected;

A. The part of the first instance court’s decision that “the exemption” is exempted or at least a part of the site usage fee should be collected under three (3) below.”

B. The part of the first instance court 14th 15th 15th 15th 200 "it is difficult to see that the plaintiff's reliance formation is justifiable as alleged by the plaintiff" is difficult to see that there is no reason attributable to the formation of reliance as alleged by the plaintiff, and (4) the defendant, around December 2005, agreed with the plaintiff to determine the types of operation and user fees of the instant riding club, etc., and proposed that the user fees for one year of the instant riding club be KRW 110 million from 190,000,000,000 which is equivalent to 1/3 to 1/40,000,000 of the reasonable user fees for one year of the instant riding club. However, in the course of consultation, it is difficult to see that such proposal falls under the defendant's public opinion statement that only a part of the riding club fee will be collected, and it is also difficult to see that the plaintiff committed any act corresponding thereto."

3. The addition;

A. Determination as to the allegation that the imposition of the instant usage fee was unlawful on the ground that the annual basis of calculation and the calculation details were not presented.

1) Summary of the Plaintiff’s assertion

Article 22 of the Public Property and Commodity Management Act provides that user fees shall be collected every year, and the defendant was illegal since he did not state the basis of calculation of annual user fees and details of calculation in imposing user fees for five years retroactively by the disposition of this case.

2) Determination.

If Gap evidence No. 24 and Eul evidence No. 19 were to show the overall purport of the pleadings, ① the defendant, on January 11, 201, attached the details of the usage fee calculation from January 1, 2006 to December 31, 2010, in order to impose the Plaintiff the usage fee of the instant riding track, and notified the Plaintiff by specifying the grounds for the imposition thereof. ② The defendant, while imposing the usage fee of this case on December 30, 201, was subject to the imposition of the usage fee of this case on December 30, 201, each of the following facts are recognized: the defendant attached the details of the usage fee calculation from January 1, 2007 to December 31, 2011 as the attached form of the disposition. Thus, the plaintiff’s allegation in this part is without merit.

B. Determination as to the assertion that the computation of the instant usage fee was erroneous

1) Summary of the Plaintiff’s assertion

The Seoul Special Metropolitan City Ordinance on Public Property and Commodity Management provides that the value of the relevant property shall be at least 25/1,000 in cases of public or public facilities with respect to the rate of usage fees, and at least 10/1,000 of the appraised value of the relevant property in cases of cultural facilities. Notwithstanding the fact that the instant riding club is one cultural facility, or at least public facilities, it is illegal that the Defendant calculated the usage fee of the instant riding club by applying 50/1,000, which is the rate of usage fees for general property.

2) Determination

A) Article 22(1) of the Public Property and Commodity Management Act provides that “When the head of a local government permits the use or profit-making of administrative property, he/she shall collect fees each year in accordance with the rate, rate, and calculation method prescribed by Presidential Decree.” The relevant statutes are as follows.

Article 14 (Use Fee) (1) of the Enforcement Decree of the Public Property and Commodity Management Act and annual user fee under Article 22 (1) of the Commodity Management Act shall be determined by municipal ordinance of a local government within the extent of at least 10/1,000 per annum of the appraised price of the relevant property reflecting the market price: Provided, That where special provisions exist in other Acts and subordinate statutes concerning the user fee of administrative property, such Acts and subordinate statutes shall govern. The provisions of Articles 23 through 35 shall apply mutatis mutandis to other matters concerning the use fee, such as the rate of user fee for temporary use of administrative property under Chapter IV of the Seoul Special Metropolitan City Ordinance on Public Property and Commodity Management, and the rate of user fee for cultural facilities under Article 21 of the Enforcement Decree of the Culture and Arts Promotion Act, such as public property and art gallery facilities, shall be at least 50/1,00 of the appraised price of the relevant public performance and art gallery facilities, and the rate of rental fee for the following public performance and art facilities shall be at least 10/100 of the appraised price of the relevant property:

▣ 문화예술진흥법 시행령제2조(문화시설의 종류)① 문화예술진흥법 제2조 제1항 제3호 마목에서 "대통령령으로 정하는 시설"이란 다음 각호와 같다.1. 지역문화복지시설2. 문화 보급 전수시설3. 그 밖에 문화예술 활동에 지속적으로 이용되는 시설로서 문화체육관광부장관이 정하여 고시하는 시설② 문화예술진흥법 제2조 제1항 제3호 각 목의 문화시설의 상세 분류는 별표 1과 같다.[별표 1] 문화시설의 상세 분류(제2조 제2항 관련)4. 지역문화복지시설다. 문화체육센터: 지역주민의 문화 체육활동을 향상하기 위하여 건립된 시설

B) According to Gap evidence 15, 17, Eul evidence 13, 14, 21, 22, 23-2, 28-1 and 2, the following circumstances, which can be seen as the whole of pleadings, i.e., "the Culture and Arts Center" can be acknowledged as cultural facilities continuously used for cultural activities. However, even in the case of the Culture and Arts Center, it cannot be seen as cultural facilities under the Culture and Arts Promotion Act, since the plaintiff's right to use the above 20th sports facilities can not be seen as being continuously used for cultural activities, since the plaintiff's right to use the 10th sports facilities cannot be seen as mere sports facilities only because there are no grounds to view that the 2nd horse race hall only was continuously used for cultural activities, and according to Article 5 (1) 1 and 2 of the Public Property and Commodity Management Act, the "property for public use" means the property for which the plaintiff directly used or decided to use for public use by the local government, as well as the property for public use.

C. Determination as to the allegation that the imposition of the instant usage fee was illegal as it deviates from or abused discretion in violation of the principle of proportionality

1) Summary of the Plaintiff’s assertion

Considering the circumstances such as the developments leading up to the Plaintiff’s operation of the instant riding club, not only the Defendant imposed the full amount of usage fees pursuant to the relevant statutes, but also imposed the instant construction cost for the improvement and repair of the instant riding club, without offsetting it, thereby allowing the Plaintiff to bear a large amount of additional charges by imposing the instant usage fee without offsetting it. It is unlawful as it violates the principle of proportionality and is in violation of the principle of proportionality.

2) Determination

The following circumstances are that Gap evidence 2-1, 2, 3, Eul evidence 4, 5, 6-1, 2, and 19-1, 2, and 17 (5) of the Enforcement Decree of the Public Property and Commodity Management Act can reduce user fees, i.e., ① Article 24 (2) of the Public Property and Commodity Management Act, and Article 17 (5) of the Enforcement Decree of the same Act, which does not meet the above conditions, ② The plaintiff does not have the obligation to exempt or reduce user fees, ② the reason that the plaintiff bears the construction expenses of this case. ③ The reason why the plaintiff bears the construction expenses of this case is insufficient to verify the "the objective construction expenses paid by the plaintiff", and thus, it appears that the defendant had no choice but to impose the full amount of the user fees. ④ The defendant is obligated to set off the construction expenses of this case and to manage the public property of local governments, ⑤ The defendant is not obligated to pay the user fees of this case within the scope of the plaintiff's imposition of the user fees of this case.

4. Conclusion

Therefore, the judgment of the first instance court is legitimate, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.

The presiding judge, judge and assistant administrator;

Judges Nown Korea

Judge Lee Ro-man