[1] In a case where an administrative investigation is provided by an individual statute, whether an administrative agency can conduct an administrative investigation with voluntary cooperation from a person subject to investigation under the proviso of Article 5 of the Framework Act on Administrative Investigations (affirmative)

[2] In a case where an administrative agency did not give prior notice under the Administrative Procedures Act or give the party an opportunity to present opinions when taking an infringing administrative disposition, whether the disposition is legitimate (negative in principle) / The standard for determining whether the grounds for the exception to prior notice or the provision of opportunity to present opinions fall under “where there is a considerable reason to deem that hearing of opinions is significantly difficult or unnecessary,” and whether the other party to the disposition is already aware of the violation of the administrative agency or that there was an opportunity to present opinions before the prior notice

[1] According to Article 5 of the Framework Act on Administrative Investigations, an administrative agency may conduct an administrative investigation only in cases where it provides for an administrative investigation in the statutes, etc. (the main text) but, on the other hand, in cases of an administrative investigation conducted with voluntary cooperation from a person subject to investigation, it is allowed to conduct such administrative investigation without any restriction. Article 5 of the Framework Act on Administrative Investigations provides for the grounds on which an administrative agency may conduct an administrative investigation to collect information or materials necessary for the agency to determine policies or to perform its duties. In addition, in light of the purport and text of such provision, “administrative investigation conducted with voluntary cooperation from a person subject to investigation” under the proviso may also be conducted in cases where

[2] According to Articles 21(1), 21(3), 21(4), and 22 of the Administrative Procedures Act, where an administrative agency imposes an obligation on a party or imposes a restriction on his/her rights and interests, it shall notify the parties concerned of the matters such as “the title of the disposition”, “the grounds for the disposition and the contents of the disposition,” “the legal grounds for the submission of opinions,” “the name and address of the agency which submitted opinions,” “the deadline for submission of opinions,” “the submission of opinions,” etc., in advance. The deadline for submission of opinions shall be determined by considering a reasonable period necessary for submission of opinions, and even in cases where other Acts and subordinate statutes stipulate that the submission of opinions shall be held, the parties concerned, etc. shall be given an opportunity to submit opinions: Provided, That a prior notice or hearing of opinions may be omitted only in cases where there are reasonable grounds to believe that the submission of opinions is extremely difficult or clearly unnecessary due to the nature of the relevant disposition.” Therefore, if an administrative agency notified the parties in advance or did not provide an opportunity to present opinions, such revocation may be denied.

In addition, whether “the hearing of opinions is considerably difficult or clearly unnecessary” should be determined in light of the nature of the relevant administrative disposition, and it shall not be determined in light of the circumstances that the other party to the disposition has already become aware of the violation of the administrative agency or had the opportunity to state opinions prior to the prior notification of the disposition.

[1] Article 5 of the Framework Act on Administrative Investigations / [2] Articles 21(1), (3), (4), and 22 of the Administrative Procedures Act

[2] Supreme Court Decision 99Du5870 Decided November 14, 200 (Gong2001Sang, 56), Supreme Court Decision 2000Du337 Decided April 13, 2001, Supreme Court Decision 2011Du30687 Decided January 16, 201 (Gong2013Sang, 350)

Defendant (Law Firm Dara, Attorneys Min Byung-il et al., Counsel for the defendant-appellant)

Gyeonggi-do Family (Law Firm LLC, Attorneys Kim Young-jin et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2015Nu49728 decided May 11, 2016

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. As to the assertion of misapprehension of legal principles as to the other party of disposition

In full view of the circumstances that the Plaintiff, as the representative director of Songdo Co., Ltd., the owner of each building of this case, actually managed each building of this case, the lower court determined that the Plaintiff may become the party to the corrective order against the instant Building Act, as a manager of each building of this case, because the Plaintiff directly caused or participated in the illegal state of each building of this case.

Examining the reasoning of the lower judgment in light of the statutes and legal principles as stated in the lower judgment, the lower court did not err in its judgment by misapprehending the legal doctrine on the other party to the disposition under Article 79(1) of the Building Act, as otherwise

2. As to the assertion of misapprehension of legal principles as to the requirements for the application of the proviso of Article 17(1)3 of the Framework Act on Administrative Investigations and voluntary cooperation

A. The court determines whether a factual assertion is true in accordance with logical and empirical rules based on the ideology of social justice and equity by free judgment, taking into account the purport of the entire pleadings and the result of the examination of evidence, and the facts duly established by a fact-finding court are binding on the Re-appeal Court (Article 8(2) of the Administrative Litigation Act, Articles 202 and 432 of the Civil Procedure Act).

B. (1) According to Article 17(1) of the Framework Act on Administrative Investigations, the head of the administrative agency who intends to conduct an administrative investigation shall notify the person subject to investigation of a written request for appearance under Article 9, a written request for report and submission of materials under Article 10, and a written investigation of access to the site under Article 11 by no later than seven days prior to the commencement of the investigation. However, in the case of an administrative investigation conducted with voluntary cooperation from the person subject to investigation pursuant to the proviso to Article 5, the court below acknowledged that the purpose of the administrative investigation can be notified orally to the person subject to investigation at the same time as the commencement of the administrative investigation. (2) The public official belonging to the defendant, the non-party, etc., notified the plaintiff of the purpose of the investigation prior to the investigation, etc., and determined that there was no violation of the Framework Act on Administrative Investigations in the above field investigation.

C. First, the part of the ground of appeal disputing the judgment of the court below that the above on-site investigation constitutes a case where the above on-site investigation was conducted with voluntary cooperation of the plaintiff is merely an error of selecting evidence and determining the value of evidence belonging to the free trial of the fact-finding court, and finding facts based thereon. It does not err in the misapprehension of legal principles as to voluntary cooperation as alleged in the ground of appeal.

D. In addition, according to Article 5 of the Framework Act on Administrative Investigations, an administrative agency may conduct an administrative investigation only when it provides for an administrative investigation in the statutes, etc. (the main text) but, on the other hand, in the case of an administrative investigation conducted with voluntary cooperation from a person subject to investigation, the said administrative investigation is permitted without such restriction. Article 5 of the Framework Act on Administrative Investigations provides for the grounds on which an administrative agency may conduct an administrative investigation to collect information or materials necessary for the agency to determine policies or to perform its duties. In addition, in light of the purport of the above provision and the text thereof, it is reasonable to interpret that “administrative investigation conducted with voluntary cooperation from a person subject to investigation” under the proviso can be conducted even when the administrative investigation

Although the Building Act provides for an on-site investigation, etc. in Articles 27 and 87, the lower court’s determination that the above on-site investigation conducted by the Nonparty, etc. regarding the act of violating the Building Act constitutes “in the case of an administrative investigation conducted with voluntary cooperation from the person subject to investigation pursuant to the proviso of Article 5 of the Framework Act on Administrative Investigations,” is deemed based on such legal doctrine that the ground for exception to prior notification, etc. of the investigation under Article 17(1)3 of the Framework Act on Administrative Investigations may be applied. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on the requirements for application

3. As to the assertion of misapprehension of the legal principle as to the defect in violation of Article 26 of the Administrative Procedures Act

(1) The lower court did not have any evidence to acknowledge that the Defendant, while rendering the instant disposition, could file an administrative appeal or administrative litigation in accordance with Article 26 of the Administrative Procedures Act, and that the Plaintiff knew of the filing procedure and the filing period. However, insofar as the Plaintiff filed the instant lawsuit within the filing period and contests the legitimacy of the instant disposition, the lower court determined that it is difficult to deem that there was a procedural defect to the extent that the instant disposition should be revoked.

Examining the reasoning of the lower judgment in light of the record, the lower court did not err by misapprehending the legal doctrine on the violation of the duty of disclosure under Article 26 of the former Administrative Procedures Act (amended by Act No. 12923, Dec. 30, 2014; hereinafter “Administrative Procedures Act”) contrary to what is alleged in the grounds of appeal.

4. As to the assertion of misapprehension of the legal principle as to the prior notice of disposition and hearing procedure under the Administrative Procedures Act

A. According to Articles 21(1), 21(3), 21(4), and 22 of the Administrative Procedures Act, where an administrative agency imposes an obligation on a party or imposes a restriction on his/her rights and interests, it shall notify the parties concerned of the matters such as “the title of the disposition, the facts causing the disposition, contents of the disposition, and legal grounds thereof,” “the method of processing submission of opinions,” “the name and address of the agency which submitted opinions,” “the deadline for submission of opinions,” “the due date for submission of opinions,” etc., in advance. The due date for submission of opinions shall be determined by considering a reasonable period necessary for submission of opinions, and even in cases where other Acts and subordinate statutes stipulate that the hearing or public hearing shall not be held, the parties concerned shall be given an opportunity to submit opinions: Provided, That where an administrative agency does not provide the parties with the above prior notice or opportunity to present their opinions in the course of infringing administrative dispositions, the administrative agency shall not be exempt from the revocation of such prior notice or opinion, except in exceptional cases.

In addition, whether the “case where there is a reasonable ground to believe that hearing of opinions is significantly difficult or clearly unnecessary” should be determined in light of the nature of the pertinent administrative disposition (see Supreme Court Decision 2000Du337, Apr. 13, 2001). It does not be determined in light of the circumstances that the other party to the disposition has already been aware of a violation against an administrative agency or had an opportunity to state opinions before giving prior notice of the disposition (see Supreme Court Decisions 9Du5870, Nov. 14, 200; 201Du30687, Nov. 14, 200; 201Du3068

B. According to the reasoning of the lower judgment and the evidence duly admitted, the following facts are revealed.

(1) As a result of the special investigation on a specific fire-fighting object within the jurisdiction, the head of Pyeongtaek chief of the fire station confirmed that each of the buildings of this case was altered without permission, and notified the Defendant on April 25, 2014.

(2) On May 14, 2014, the Nonparty, a public official affiliated with the Defendant, notified the Plaintiff by telephone that an on-site investigation of each of the instant buildings needs to be conducted, and promised to conduct an on-site investigation.

(3) In the field investigation process, the Nonparty confirmed the unauthorized Extension Area and the unauthorized Use Change, and stated it in the confirmation form, and explained to the Plaintiff that each of the above actions violates Article 14 or 19 of the Building Act, and thus, the corrective order will be issued, and the enforcement fine will be imposed if not fulfilled. The Nonparty asked questions about the details of the violation, and then asked the Plaintiff’s answer, and then confirmed the Plaintiff’s signature. In the above form, the Nonparty stated, “I confirm that “I have done illegal construction (extension, extension, change of use) without obtaining any permission under the relevant laws and regulations,”

(4) The Defendant issued the instant disposition on May 15, 2014, without a separate advance notice or undergoing the procedures for giving an opportunity to state opinions.

C. Examining these facts in light of the above legal principles, the following is determined.

(1) The Nonparty’s notification to the Plaintiff by phone prior to the above on-site investigation cannot be deemed as notification of the administrative investigation and notification of the instant disposition. In addition, even if the Nonparty given the Plaintiff an opportunity to state opinion regarding the details of the violation at the time of the on-site investigation, considering the fact that the instant disposition was immediately following the date of the on-site investigation, it is difficult to deem that the deadline for submitting opinions was given, taking

(2) In addition, just because the Plaintiff was aware of a violation or made a statement in the course of a field investigation, it cannot be deemed that the Plaintiff’s failure to give prior notice of the disposition is a “where there is a reasonable ground to believe that hearing of opinions is difficult or clearly unnecessary” as prescribed by Article 21(4)3 of the Administrative Procedures Act.

(3) Therefore, it cannot be deemed that the Defendant, an administrative agency, while rendering the instant disposition that is an infringing administrative disposition, gave a legitimate prior notice or giving an opportunity to present opinions pursuant to the Administrative Procedures Act to the Plaintiff.

D. Nevertheless, on the grounds indicated in its reasoning, the lower court determined that the Defendant did not have any defect in the procedure for giving prior notice of the instant disposition and giving opportunity to present opinions prior to the instant disposition, or, even if not, there were reasonable grounds to deem that hearing of opinions is clearly unnecessary, on the premise that there was no defect in the procedure for giving prior notice of the instant disposition and giving opportunity to present opinions.

Therefore, the judgment of the court below is erroneous in the misunderstanding of legal principles as to the prior notice of dispositions and the procedures for granting opportunity to present opinions as prescribed by the Administrative Procedures Act, which affected the conclusion of the judgment. The

5. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim So-young (Presiding Justice)