[1] Whether the Korea National Housing Corporation can collect expenses incurred in performing vicarious execution, which is entrusted with authority for vicarious execution under the Act and subordinate statutes, according to the procedure of the Administrative Vicarious Execution Act (affirmative)

[2] The case affirming the judgment below that the above claim is unlawful in case where the Korea National Housing Corporation can collect expenses incurred in performing vicarious execution, which was entrusted with the authority of vicarious execution under the Acts and subordinate statutes, in accordance with the procedure of the Administrative Vicarious Execution Act, but claims reimbursement of such expenses

[1] The expenses paid by the Korea National Housing Corporation to carry out vicarious execution, which is entrusted with authority for vicarious execution under the former Korea National Housing Corporation Act (repealed by Article 2 of the Addenda to the Korea National Housing Corporation Act (Act No. 9706, May 22, 2009) and the former Enforcement Decree of the Korea National Housing Corporation Act (repealed by Article 2 of Addenda to the Enforcement Decree of the Korea National Housing Corporation Act (Act No. 21744, Sept. 21, 2009) may be collected according to the procedure

[2] In a case where the Korea National Housing Corporation (repealed by Article 2 of the Addenda to the Korea National Housing Corporation Act, Act No. 9706 of May 22, 2009) and the former Enforcement Decree of the Korea National Housing Corporation Act (repealed by Article 2 of Addenda to the Enforcement Decree of the Korea National Housing Corporation Act, Presidential Decree No. 21744 of Sept. 21, 2009) claims reimbursement of expenses incurred in order to perform vicarious execution, which is entrusted with authority for vicarious execution, according to the procedures of the National Tax Collection Act, in accordance with the procedures of the National Tax Collection Act, although it can collect expenses pursuant to the procedures of civil procedure, the case affirming the judgment below that the Administrative Vicarious Execution Act is unlawful since it has prepared a simplified and economic special remedy procedure, which is not a lawsuit

[1] Article 2 (see current Article 2 of the Korea Land and Housing Corporation Act), Article 5 (see current Article 4 of the Korea Land and Housing Corporation), Article 9 (1) 2 (see current Article 19 (1) 3), Article 9 (2) 7 (see current Article 19 (3) 8 of the Korea Land and Housing Corporation Act), Article 10 (1) 2 (see current Article 2 of the Enforcement Decree of the Korea Land and Housing Corporation Act, Article 41 (1) 3) of the former Enforcement Decree of the Korea Land and Housing Corporation Act, Article 9 (2) 9 of the Korea Land and Housing Corporation Act (see current Article 2 of the Korea Land and Housing Corporation Act, Article 41 (2) of the Enforcement Decree of the Korea Land and Housing Corporation Act, Article 9 of the Korea Land and Housing Corporation Act, Article 2 of the former Enforcement Decree of the Korea Land and Housing Corporation Act, Article 9 (2) of the Korea Land and Housing Corporation Act, Article 2 of the Korea Land and Housing Corporation Act (see current Article 9 (2) of the Korea Land and Housing Corporation Act, Article 9) of the Korea Act)

Korea Land and Housing Corporation (Government Law Firm, Attorneys Literacy-Bed et al., Counsel for the plaintiff-appellant)

Defendant

Seoul High Court Decision 2010Na14478 decided June 3, 2010

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. The Korea National Housing Corporation (the comprehensive succession of rights and obligations to the Plaintiff under Article 8 of the Addenda to the Korea National Housing Corporation Act (Act No. 9706 of May 22, 2009) is a corporation established by the Government after making full contributions to its capital in accordance with Articles 2 and 5 of the former Korea National Housing Corporation Act (repealed by Article 2 of the Addenda to the Korea National Housing Corporation Act; hereinafter “Act”). In the event that the Korea National Housing Corporation carries out a housing site development project under the Housing Site Development Promotion Act, Article 9(1)2 and 9(2)7 of the Act, Article 2 of the former Enforcement Decree of the Korea National Housing Corporation Act (amended by Presidential Decree No. 21744 of Sep. 21, 2009), Article 10(1)2 of the former Enforcement Decree of the Korea National Housing Corporation Act, and Article 89(2) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects, who is entrusted with the authority of vicarious execution.

Meanwhile, Article 2 of the Administrative Vicarious Execution Act provides that "in case where a person liable to perform an act ordered directly by an Act (including an order issued by delegation of an Act and a Municipal Ordinance of a local government; hereinafter the same shall apply) or under an order issued by an administrative agency pursuant to an Act and conducted by another person on behalf of another person fails to perform such act, if it is difficult to secure the implementation by other means, and it is deemed extremely detrimental to the public interest to neglect the nonperformance, the administrative agency concerned may perform the act to be done by the person liable to perform it, or have a third person do it, and collect the expenses from the person liable to perform it," and Article 6 (1) of the same Act provides that "the expenses required for the vicarious execution may be collected in accordance with the National Tax Collection

In full view of the legal personality of the Korea National Housing Corporation and the purport of each provision on the status of the Korea National Housing Corporation as a result of being entrusted with vicarious execution, the purpose, contents, and collection of expenses, etc., it is reasonable to view that the Korea National Housing Corporation can collect expenses incurred in performing vicarious execution, which is entrusted with the authority of vicarious execution under the Act and the Enforcement Decree, according to the procedure of the

2. According to the reasoning of the judgment below, the court below determined to the same purport that the Administrative Vicarious Execution Act provides a simple and economic special remedy procedure, not by civil procedure, regarding the collection of expenses for vicarious execution, so the Plaintiff’s claim of this case seeking reimbursement of expenses for vicarious execution as compensation based on Article 750 of the Civil Act is unlawful as there is no benefit of lawsuit.

In light of the above legal principles and records, the judgment of the court below is just, and there is no error by misapprehending the legal principles on the interpretation of Articles 5 and 6 of the Administrative Vicarious Execution Act.

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Nung-hwan (Presiding Justice)