Plaintiff (Law Firm Jung-il, Attorney Seo-Gyeong et al., Counsel for the plaintiff-appellant)

The head of Gangnam-gu Seoul Metropolitan Government (Attorney Lee Sung-soo)

May 11, 2018

Seoul Administrative Court Decision 2017Gudan5988 decided November 1, 2017

1. Revocation of the first instance judgment.

2. The Defendant’s imposition of enforcement fines of KRW 5 million against the Plaintiff on May 9, 2016 and the disposition of refusal to grant permission for displaying outdoor advertisements, etc. on June 24, 2016 shall be revoked.

3. All costs of the lawsuit shall be borne by the defendant.

The text shall be as shown in the text.

1. Details of the disposition;

A. Status of the parties

around September 14, 1999, the Plaintiff acquired an advertising tower installed in the building located in Gangnam-gu Seoul ( Address 1 omitted) (hereinafter “instant advertising tower”) from Japan Co., Ltd. and owned and managed the instant advertising tower from September 14, 199.

B. Imposition of enforcement fines by the Defendant

On February 24, 2016, the Defendant issued a corrective order to the Plaintiff pursuant to Article 3(3) of the former Outdoor Advertisement, etc. Control Act (amended by Act No. 13726, Jan. 6, 2016; hereinafter “former Outdoor Advertisement Act”); Article 3 subparag. 5, Article 4(1)4, and 8 subparag. 1, 8 subparag. 3 [Attachment 1] of the former Enforcement Decree of the Outdoor Advertisement Act (amended by Presidential Decree No. 2729, Jun. 30, 2016; hereinafter “former Enforcement Decree of the Outdoor Advertisement Act”); Article 3(1) of the former Outdoor Advertisement Act (amended by Presidential Decree No. 2729, Jun. 30, 2016; hereinafter “former Enforcement Decree of the Outdoor Advertisement Act”); Article 3(1) of the former Outdoor Advertisement Act (amended by Presidential Decree No. 10551, Oct. 16, 2016; hereinafter “Enforcement Decree of the Outdoor Advertisement Act”).

(c) The defendant's rejection disposition of permission for displaying outdoor advertisements;

On the other hand, on May 2, 2016, the Plaintiff applied for permission to display a rooftop signboard against the instant advertising tower from May 1, 2016 to April 30, 2019.

On June 24, 2016, the Defendant rejected the deliberation of the Plaintiff on the grounds that “the legal basis for the training of a rooftop advertising tower without permission under the current Advertising Act exists,” and rendered a disposition rejecting the Plaintiff’s application for permission for the permission for the display of outdoor advertisements, etc. (hereinafter “instant Disposition 2”).

[Ground of recognition] Facts without dispute, Gap evidence 2, 7 through 9 (if there are virtual numbers, including each number; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the first and second dispositions of this case are legitimate

A. The plaintiff's assertion

1) As to the first disposition of this case

A) Article 49 of the former Building Act (amended by Act No. 4364 of Mar. 8, 1991; hereinafter the same) and Articles 97 and 100 of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 13249 of Jan. 14, 191; hereinafter the same shall apply), which are structures under the Building Act constructed pursuant to Article 49 of the former Building Act and Articles 97 and 100 of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 13249 of Jan. 14, 191; hereinafter the same shall apply), cannot be the concept of permission that is not subject to the former Outdoor Advertisement Act. Accordingly, the instant advertising tower does not need to obtain permission under Article 3(1) of the former Outdoor Advertisement Act

B) In addition, on August 12, 2008, the Defendant ordered the Plaintiff to remove a rooftop signboard on the ground of the violation of outdoor advertisement display rules, and the Plaintiff removed the rooftop signboard at the time and left the instant advertising tower in white board. However, on February 24, 2016, the Defendant committed an act inconsistent with the act of ordering only the removal of the rooftop by ordering the removal of the instant advertising tower. Accordingly, the Defendant infringed the Plaintiff’s trust that it would maintain the instant advertising tower, namely, the Plaintiff’s legitimate trust. Accordingly, the instant disposition was unlawful in violation of the principle of trust protection.

2) As to the second disposition of this case

A) Although the Review Committee did not have the authority to determine the legality of the instant advertising tower legally established pursuant to the former Building Act, it rejected the instant advertising tower’s deliberation by deeming it an unauthorized bulletin facility. Even if the Review Committee has the authority to deliberate on it, the instant Disposition 2, which rejected the Plaintiff’s application for permission without entirely deliberating on whether the instant advertising tower satisfies the requirements for permission at the time of application, was unlawful.

B) In light of the fact that the instant advertising tower is a facility for which legitimate permission was obtained pursuant to the former Building Act, and that the Plaintiff ought to apply for permission to remove the instant advertising tower and install the same facility in a new manner due to the instant disposition No. 2, the instant disposition is unlawful in violation of the principle of proportionality, in view of the fact that enormous costs and considerable time takes place.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) The advertising tower of this case was constructed around September 1990 and its height reaches the 6th section of the advertising tower.

2) Japan Co., Ltd. obtained permission from the Defendant for the display of advertisements on September 28, 1990 after the first installation of the instant advertising tower, and the main contents of the permission for the display of advertisements at the time are as follows:

1. Types of advertisements and purpose of use x 18 x6 x 2 x 13 x 6 x 2 x 1 x 3. Place ( Address 2 omitted) of Gangnam-gu; 4. Period of permission for installation 90 - September 28, 90 - September 27, 992>

3) On September 15, 2005, the Plaintiff obtained permission for displaying outdoor advertisements, etc. from the Defendant during the display period from May 10, 2005 to May 9, 2008.

4) On June 2, 2008, the Plaintiff did not obtain permission for extension on the ground that the Plaintiff filed an application for permission to extend the display of outdoor advertisements with the Defendant, but did not submit relevant documents.

5) On August 12, 2008, the Defendant ordered the Plaintiff to remove an outdoor advertisement and submit the result on the ground that the permitted display period has expired. The Plaintiff submitted a photograph of removing an outdoor advertisement to the Defendant on September 2, 2008.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 3, 4, and 5, the purport of the whole pleadings

D. Determination

1) As to the first disposition of this case

A) Whether the former Outdoor Advertisement Act is applied

(1) Around September 190 where the advertising tower of this case was constructed, only the former Advertising, etc. Control Act (amended by the former Outdoor Advertisement Act, Act No. 4242 of Aug. 1, 1990; hereinafter the same shall apply) existed and the relevant Enforcement Decree was not yet established. Instead, Articles 3(2) and 4(2) of the former Advertising, etc. Control Act provide that prohibition or restriction of advertisements, etc. shall be prescribed by the Seoul Special Metropolitan City Rules, Busan Metropolitan City Rules, Busan Metropolitan City Rules, or Do Rules. Accordingly, the Seoul Special Metropolitan City Ordinance No. 2343 of Jun. 15, 1990 (amended by the Seoul Special Metropolitan City Rules No. 2343 of Jun. 15, 199; hereinafter the same shall apply) prescribed matters necessary for the enforcement of the former Advertising, etc. Control Act was amended by the former Outdoor Advertisement Act by Act No. 4242 of Aug. 1, 199, which was enacted by the Presidential Decree No. 19218, Dec. 13, 19, 1997>

(2) At the time of construction of the advertising tower, Article 2 of the former Enforcement Rule of the Outdoor Advertisements, etc. Control Act (amended by Act No. 4516, Dec. 8, 1992; hereinafter the same) newly introduced the same contents as those of the above Enforcement Rule by stipulating that permission or report shall not apply to the advertisements, etc. displayed or circulated under other Acts and subordinate statutes, even though Article 8 of the former Enforcement Rule provides that permission shall not apply to the advertisements, etc. displayed or installed in a certain area, place, or object. In addition, Article 2 of the former Enforcement Rule of the Outdoor Advertisements, etc. Control Act (amended by Act No. 4242, Aug. 1, 1990; hereinafter the same shall apply) was amended by the former Outdoor Advertisements Act (amended by Act No. 4516, Dec. 8, 1992; hereinafter the same shall apply) newly introduced the same provisions as those of the above Enforcement Rule by stipulating that permission or report shall not apply to advertisements displayed or installed under other Acts and subordinate statutes (after amendment of the former Outdoor Advertisements Act).

(3) Meanwhile, Article 49 of the former Building Act (amended by Act No. 4364, Mar. 8, 1991) provides that part of the same Act shall apply mutatis mutandis to the construction of an advertising tower, as prescribed by Presidential Decree, at the time of the construction of the advertising tower. Article 100 (1) 3 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 13249, Jan. 14, 191) provides that construction permission shall apply mutatis mutandis to the construction of an advertising tower exceeding the area of 4th height of the above Building Act. The relevant provisions of the former Enforcement Decree of the Building Act still regulate the construction of the advertising tower by changing its location or permitted matters into reported matters, and Article 118 (3) of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 15802, May 23, 1998) provides that Article 100 (1) 3 of the former Enforcement Decree of the Building Act shall not apply mutatis mutandis to the height of the advertising tower and other similar provisions to the advertising tower.

(4) In full view of the history and structure of the relevant laws and regulations, the instant advertising tower built around September 190 appears to have been permitted to be constructed under Articles 5 and 49 of the former Building Act, and Article 100(1)3 of the former Enforcement Decree of the Building Act, which were in force at the time. Moreover, it is reasonable to view that the former Act was excluded from the application of the former Advertisement Control Act with respect to the instant advertising tower legally constructed under the former Building Act. Although there was no express provision regarding the exclusion of application in the former Advertisement Control Act, the former Advertisement Control Act, which was enacted to regulate the prohibition or restriction of advertisements or bulletin facilities by delegation of the same Act, excluded the application of the same Enforcement Rule to the advertising tower constructed under Article 8 of the former Enforcement Rule of the Advertisement Control Act, which was enacted to regulate the prohibition or restriction of advertisements or bulletin facilities, and even if it was clearly distinguished from the concept of the permission tower installed under Article 2 of the former Advertisement Control Act, it appears that the Defendant did not refer only to the instant advertising tower installed for the period of September 28, 1990.

In addition, with the exception of temporary buildings stipulated in Article 47 of the former Building Act, it is reasonable to view that the former Outdoor Advertisement Act still does not apply to the advertising tower legally constructed under the former Building Act, even when considering that the contents of the former Outdoor Advertisement Act and the former Enforcement Decree of the Outdoor Advertisement Act are not applied to advertisements displayed or installed under other Acts and subordinate statutes, such as the Building Act, and it is reasonable to view that the former Outdoor Advertisement Act still does not apply to the advertising tower legally constructed under the same Act, except for the cases of temporary buildings stipulated in Article 47 of the former Building Act, and there was no provision to limit the retention period of the building permit, and there was no provision to know that the restriction on the retention period of the advertising tower was included in the building permit for the advertising tower of this case. In addition, since the former Outdoor Advertisement Act and the former Enforcement Decree of the Outdoor Advertisement Act are not applicable to the advertising tower installed without the restriction on the installation period under the former Building Act, it is necessary to apply the corresponding provision of the former Outdoor Advertisement Act to the subsequent legal interpretation and protection of the individual's position.

(5) Ultimately, the instant advertising tower does not need to obtain permission pursuant to Article 3(1) of the former Outdoor Advertisement Act, and even if the period of permission for display of the advertisement indicated in the instant advertising tower expires, such circumstance alone cannot be deemed to constitute an unauthorized bulletin facility violating the former Outdoor Advertisement Act. Nevertheless, the instant first disposition against the instant advertising tower, ordering its removal on the premise that the former Outdoor Advertisement Act applies, and imposing the enforcement fine, is considered an illegal disposition against the application of the statutes. The Plaintiff’s assertion on this part is with merit.

2) As to the second disposition of this case

A) Whether the review result of the Review is legitimate

Article 7(1)3 of the former Outdoor Advertisement Act provides for “matters concerning the improvement of design of advertisements, etc., matters concerning harmony between advertisements, etc. and urban landscapes, and other matters deemed necessary by the chairperson in connection with advertisements, etc.” The advertisements displayed on bulletin facilities to which the former Outdoor Advertisement Act applies shall be deemed illegal advertisements if they are illegal facilities, so whether permission has been granted under Article 3(1) of the same Act shall be determined as “matters deemed necessary by the chairperson in connection with advertisements, etc.,” which may be deliberated by the Deliberation Committee.

However, as seen earlier, it is reasonable to view that the former Outdoor Advertisement Act does not apply to a structure built with permission under the former Building Act, as seen earlier, and in such a case, whether the permission under the same Act has been obtained does not fall under the subject matter of deliberation by the Deliberation Committee. Nevertheless, the fact that the Deliberation Committee merely stated that the instant advertising tower is a structure legally constructed under the former Building Act and not subject to the former Outdoor Advertisement Act, and that it was rejected by deeming that it was an unauthorized bulletin facility in violation of the former Outdoor Advertisement Act was not subject to the former Outdoor Advertisement Act is beyond its authority, and that it did not properly deliberate on whether the Plaintiff’s application satisfies the requirements for permission. The Plaintiff’s assertion on this part is with merit.

B) Whether the principle of proportionality is violated

As seen earlier, the instant advertising tower has been set up lawfully pursuant to the former Building Act and has been set up for more than 20 years, and the Deliberation Committee did not take into account such parts, and rejected the deliberation by the instant advertising tower based on the erroneous determination that the instant advertising tower was an unauthorized bulletin facility under the former Outdoor Advertisement Act, and the removal of the instant advertising tower and obtaining permission by newly installing the same facility is not only detrimental to the Plaintiff’s trust and legal stability, but also significantly inefficient in society and society, taking into account the public interest to be achieved through the instant Disposition No. 2, namely, the need to maintain scenic landscapes and public morals, prevent harm to the public, and create a healthy and pleasant living environment, even if considering the need to regulate outdoor advertisements, the disadvantages suffered by the Plaintiff are extremely enormously contrary to the principle of proportionality. Accordingly, the Plaintiff’s assertion on this part is with merit.

3. Conclusion

Thus, all of the claims of the plaintiff should be accepted for the reasons. Since the judgment of the court of first instance is unfair with different conclusions, the plaintiff's appeal is accepted and it is so decided as per Disposition.

[Attachment]

Judges Han Chang-hun (Presiding Judge)

1) The Act on the Management of Outdoor Advertisements, etc. and Promotion of Outdoor Advertisement Industry was enforced six months after its promulgation pursuant to Article 1 of the Addenda.

2) The above Enforcement Rule was repealed by Seoul Special Metropolitan City Rule 2864 on December 5, 1997, on the ground that the Enforcement Decree of the former Outdoor Advertisement Act was enacted and enforced, and the method of displaying outdoor advertisements, etc. became null and void by being prescribed in the Enforcement Decree of the same Act.