2016Guhap50472 Revocation of Disposition of Non-permission for Land Use

Leptosiriros;

Heading Market

November 24, 2016

December 8, 2016

1. On July 11, 2016, the Defendant’s refusal to file an application with the Plaintiff for permission for use of 54 square meters in a square of the 167 square meters of the Dopo-si 43-3 Road 167 square meters against the Plaintiff is revoked.

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

The same shall apply to the order.

1. Details of the disposition;

A. On July 5, 2016, the Plaintiff filed an application for permission to use administrative property of 54 square meters (hereinafter referred to as "application of this case") out of 43-3 square meters (hereinafter referred to as "the land of this case") of the land of 44 square meters (hereinafter referred to as "the site of this case") in the Seocho-si, Do (hereinafter referred to as "the land of this case") on the ground of the land of 44 square meters (hereinafter referred to as "the project site of this case") which is owned by the Plaintiff as a social welfare foundation for the installation and operation of residential facilities for the disabled. In order to secure access to the site of this case, the Plaintiff filed an application for permission to use administrative property of 54 square meters (hereinafter referred to as "application of this case") between the project site of this case and the land of this case.

B. On July 11, 2016, the Defendant rejected the instant application on the ground that the instant application was rejected on the following grounds: (a) “On the ground that the instant site belongs to the land to be incorporated into Category 1 Chapter 5 at the beginning of the city, which is a road in which the part was installed, and thus, it is necessary to manage the instant site as administrative property until the completion of the urban planning project.” (b) The access road to be installed by the Plaintiff in the instant site (hereinafter “the access road”) constitutes permanent facilities and is in violation of Article 13 of the Public Property and Commodity Management Act (hereinafter “Public Property Act”); and (c) where permission is granted, it is impossible to restore it to the original state due to the impossibility of restoring it to the purpose or use of the (road) administrative property and thus is in violation of Article 20(1)1 of the Public Property Act.”

C. On August 4, 2016, the Plaintiff filed an administrative appeal seeking the revocation of the instant disposition with the Gangwon-do Administrative Appeals Commission, but the Gangwon-do Administrative Appeals Commission dismissed the Plaintiff’s claim on August 10, 2016.

【Ground of recognition】 Facts without dispute, entry of Gap evidence, Gap evidence, 2, 3, 4, 6, 12, and 13, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

1) The Plaintiff asserts that the instant application is an unlawful disposition that does not recognize the grounds for the instant disposition, or deviates from or abused the discretionary power, because it is merely for the use of the instant site as an access road leading to the adjacent contribution only to the adjacent contribution, and thus it cannot be deemed that it is possible to restore it to its original state as well as for the administrative purpose or use of the instant land.

2) As to this, the Defendant asserts to the effect that the access road of this case constitutes permanent facilities, and that if the access road of this case is permitted, it will obstruct the administrative purpose or use of the road (parking lot, bus stop facility, resting facility, Si bus-routing facility, Si road guidance sign, speed prevention facility, snow removal facility, drinking water, etc.) by expanding the adjacent road in accordance with the Defendant’s urban planning, or installing road appurtenances on the ground of the instant land, and that the use and profit-making of administrative property of this case is discretionary act, and that the instant disposition is legitimate as it is a disposition within the discretionary authority, taking into account administrative purpose, use, etc. of the instant land.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Facts of recognition

The following facts are acknowledged in full view of Gap evidence 1, Gap evidence 15-1, Eul evidence 15-2, Eul evidence 4, Eul evidence 1-1, Eul evidence 1-3, Eul evidence 1-1, and the overall purport of Eul evidence 1-1 video and arguments.

A) It is necessary to establish access roads to the instant land in order to ensure that the instant land is located between the instant site and the neighboring meritorious service and passing through a nearby meritorious service from the instant site. Although part of the instant land consists of slopes, it does not have a high gradient as it does not have any height. Of the instant land, the area occupied by the instant site is about 1/3.

B) The land category of the instant land is a road and is being managed as administrative property for the purpose of the road. Of the instant land, including the instant site for application, part of the instant land is planned to be a site for expansion of road width adjacent to the Si/Gu, Seocho-si.

C) Meanwhile, in around 2015, the Plaintiff filed an application with the Defendant for a subsidy for the installation of residential facilities for mentally disabled persons in the instant project site. On June 25, 2015, the Defendant accepted the purport of the application and rendered a decision to pay KRW 1.143 billion with the pertinent subsidy on August 3, 2015, along with the opinion that the Gangwon-do Governor requires additional admission facilities due to a very lack of facilities for the disabled compared to the number of intellectual disabled persons registered within the jurisdiction of the Seocho-si, and that the facility access performance of the instant project site is excellent and pleasant.

2) Whether the access road of this case constitutes "permanent facilities"

A) Article 13 of the Public Property Act provides, “No person, other than the head of the relevant local government, shall construct structures, such as buildings, ditches and bridges, and other permanent facilities, on public property.” However, the Defendant, on the premise that the access road of this case falls under the “permanent facilities” under Article 13 of the Public Property Act, and thus, first, whether the access road of this case falls under permanent facilities.

B) According to the above facts, the access road of this case is merely merely an access road to access the road to the adjacent road from the housing of this case, and its size is not significant. Considering the gradient, height, etc. of the land of this case, even if the road packaging works are involved in order to install the access road of this case, it seems that the road of this case can be easily removed and physically restored to its original state to the extent that it is necessary for the construction of the road. In addition, in the event the expanded construction of the road is conducted after the construction of the access road of this case, the part of the access road is incorporated into the expanded road, and the access road to the expanded road is deemed to be maintained without hindering the use of the expanded road. Thus, it is difficult to abolish the access road, and thus, it is difficult to accept the argument that it is practically impossible to restore the access road to its original state. Accordingly, this part of the ground for disposition by the Defendant is not recognized.

3) Whether the access road of this case obstructs the purpose or use of the administrative property (road)

A) Article 20(1) of the Public Property Act provides that “The head of a local government may permit the use of, or benefit from, administrative property to the extent that the use of, such property does not interfere with the enemy or use of such property.” Therefore, if the purpose or use of administrative property is hindered, the use of, or benefit from, such property shall not be permitted. Therefore, the access road of this case, which is an administrative property managed as a road, shall not interfere with the administrative purpose or use of, the land of this case.

B) As seen earlier, the purpose of the instant application is to use it as an access road to access personal roads from the site of the instant application, and rather to recognize and actively utilize the content of the application. In addition, in light of the size, shape, etc. of the instant land, there is no circumstance to deem that the instant application site is relatively more appropriate for the installation of road appurtenances (parking lot, bus stop facilities, resting facilities, stop facilities, starting-up signs, speed prevention facilities, snow removal facilities, snow removal facilities, etc.), and there is no circumstance to deem it particularly difficult to install road appurtenances when expanding the instant access road even after the instant access road was installed.

Therefore, the establishment of the access road of this case cannot be deemed as an obstacle to the administrative purpose or use of the road of this case.

4) Whether the instant disposition was an unlawful disposition that deviates from or abused

A) Permission for use and profit-making of administrative property is not a private act conducted as a private economic entity, but an administrative disposition conducted by a management agency as a superior position with public authority, and constitutes a patent under the class of Gangwon which creates a right to use administrative property to a specific person (see, e.g., Supreme Court Decision 97Nu1105, Feb. 27, 1998). Accordingly, the instant disposition that denies the application for permission for use of the instant site, which is an administrative property, is a patent in the class of Gangwon-do.

B) Meanwhile, Article 1 of the Act on Welfare of Persons with Disabilities provides that “The purpose of this Act is to contribute to social integration through the promotion of welfare and participation in social activities of persons with disabilities by clarifying the responsibilities of the State, local governments, etc. for the prevention of occurrence of disabilities and the improvement of their rights as human beings, by comprehensively promoting measures for welfare of persons with disabilities by prescribing necessary matters concerning the self-reliance of persons with disabilities, the protection of persons with disabilities, the payment of allowances, etc., and by contributing to the stabilization of the livelihood of persons with disabilities.” Article 9(1) of the Act on Welfare of Persons with Disabilities provides that “The State and local governments shall prevent the occurrence of disabilities, raise the interest of persons with disabilities, support for early detection of disabilities, protect persons with disabilities, and improve the welfare of persons with disabilities.” Article 48 of the Act on Welfare of Persons with Disabilities provides that “the State and local governments may, notwithstanding the State Property Act or Public Property Act, lease property or public property with or without consideration, and may provide for the improvement of welfare of persons with disabilities.”

C) Where the purpose of the application for the permission of use of administrative property is to establish welfare facilities for disabled persons, administrative agencies shall fully consider the purpose of the Act, the public nature of welfare facilities for disabled persons, and the purport of each of the above provisions when exercising discretionary power over the permission of use and profit-making of the relevant property.

D) Comprehensively taking account of the following circumstances recognized by the above facts, the instant disposition is deemed an unlawful disposition that deviates from and abused the discretion regarding the permission to use and benefit from administrative property.

(1) The Plaintiff filed the instant application to secure access roads necessary for the construction of the instant housing to be used as welfare facilities for the disabled.

(2) As seen earlier, it cannot be deemed that the construction of the access road of this case obstructs the administrative purpose or use of the road of this case.

(3) In light of the purpose of the instant application and the size, form, etc. of the site for the instant application, the Defendant may minimize the likelihood of hindering the purpose or use of the instant land or road appurtenances, by means of the construction of the instant access road, including imposing conditions to adjust the area, location, form, etc. of the access road.

(4) The Defendant recognized the need for the establishment of welfare facilities for the disabled in the instant project site, and applied to the Gangwon-do Governor for the payment of subsidies for this purpose, and received the decision on the payment of subsidies from the Gangwon-do Governor. However, the instant disposition rejecting the instant application for the use of the instant site as access roads would eventually result in a difficult establishment of welfare facilities for the disabled.

5) Sub-decisions

Since the access road of this case cannot be seen as a permanent facility, and it is difficult to see that the access road of this case is an obstacle to the administrative purpose or use of the land of this case due to the construction of the access road of this case, the reason for disposition of this case is not recognized, and furthermore, it is reasonable to see that the defendant has abused discretion regarding the permission to use and benefit from the administrative property.

3. Conclusion

Therefore, the claim of this case is justified, and it is so decided as per Disposition.

Kim Jong-Un (Presiding Judge)

Redline:

Notarial decoration;

1) Article 20(4) of the Public Property Act appears to be erroneous in the disposition of this case (Evidence A No. 1).

[Attachment]

Related Acts and subordinate statutes

/Public property and Commodity Management Act

Article 13 (Prohibition of Constructing Permanent Facilities) No person, other than the head of the relevant local government, shall construct any structure, such as ditches and traffic, or other permanent facilities, on public property: Provided, That this shall not apply to cases prescribed by Presidential Decree, where the use or utilization of such public property is not impeded.

Article 20 (Permission for Use and Benefit)

(1) The head of a local government may permit administrative property to be used or profit therefrom within the extent not hindering its purpose or use.

(2) Where the head of a local government intends to grant permission for use and profit-making pursuant to paragraph (1), he/she shall do so through a general tender: Provided, That in any of the following cases, such permission may be granted by means of designated bidding or private contract:

1. Where it is deemed necessary in consideration of the purpose, nature, etc. of permission, as prescribed by Presidential Decree; 2. Where permission is granted to a donator, his/her heir or general successor under the proviso to Article 7 (2);

(3) No person who has obtained permission for use or benefit pursuant to paragraph (1) shall allow any third person to use or benefit from such administrative property: Provided, That where a person who has obtained permission for use or benefit pursuant to paragraph (1) is a donator pursuant to the proviso to Article 7 (2), his/her heir or general successor pursuant to the proviso to Article 7 (2), he/she may allow any third person to use or benefit from such administrative property with approval from

(4) Where the use or benefit under the proviso to paragraph (3) obstructs the purpose or use thereof, or where the head of a local government deems it difficult to recover the original state of administrative property, he/she shall not approve such use or benefit therefrom.

/Enforcement Decree of the Public Property and Commodity Management Act

Article 9 (Prohibition on Constructing Permanent Facilities)

(1) Cases where permanent facilities may be constructed on public property pursuant to the proviso to Article 13 of the Act shall be limited to any of the following cases:

3. Where a person who has obtained permission for use or profit or has obtained a loan uses it during the period of permission for use or profit or lease;

In case of construction under the condition of voluntary removal, deposit of removal costs, etc. In this case, the examples of removal costs

Any person shall install permanent facilities prior to the commencement of such facilities.

9. To the extent that does not impede the current or future use and utilization of public property by local governments;

Where a structure is installed underground or above the ground of the relevant public property;

Article 12 (Permission for Use and Profit-making) The following matters may be permitted to use and profit from administrative property pursuant to Article 20 (1) of the Act:

3. Where other property does not obstruct the use or purpose of the relevant property, such other local governments.

Where the head of the Gu deems it necessary;

Welfare of Disabled Persons Act

Article 1 (Purpose) The purpose of this Act is to contribute to social integration through promotion of participation in welfare and social activities of persons with disabilities by clarifying the responsibilities of the State, local governments, etc. to guarantee their human lives and rights as human beings, by prescribing projects concerning the prevention of occurrence of disabilities and the medical, educational and vocational rehabilitation living environment for persons with disabilities, comprehensively promoting measures for persons with disabilities, by prescribing necessary matters concerning the protection of self-reliance of persons with disabilities, the payment of allowances, etc., and by providing for

Article 9 (Responsibilities of State and Local Governments)

(1) The State and local governments shall be responsible for the prevention of disability from occurring, enhancement of national interest in early detection of disabilities, support for self-reliance of persons with disabilities and the improvement of the welfare of persons with disabilities by protecting persons in need of protection.

Article 48 (Preferential Sale or Gratuitous Lending of State-Owned or Public Property)

(1) Where it is necessary for the establishment of welfare facilities for persons with disabilities or welfare organizations for persons with disabilities under this Act to establish welfare facilities for persons with disabilities, notwithstanding the State Property Act or the Public Property and Commodity Management Act, the State and local governments may preferentially sell State property or public property, and lend State property or public property with or without compensation, or allow persons to use or profit from

(2) When a person who has purchased, leased, or borrowed land or facilities from the State or a local government under paragraph (1) fails to establish welfare facilities for persons with disabilities or to install facilities related to welfare projects for persons with disabilities of welfare organizations for persons with disabilities within two years from the date on which the person purchased, leased, or lent such land or facilities, the State and local governments may