Plaintiff (Law Firm LLC, Attorneys Jeong Tae-chul et al., Counsel for the plaintiff-appellant)

The Administrator of the Cultural Heritage Administration (Attorney Seo-jin, Counsel for the defendant-appellant)

July 25, 2012

Seoul Administrative Court Decision 2011Guhap28424 decided November 24, 2011

1. Revocation of the first instance judgment.

2. The Defendant’s disposition rejecting an application for adjudication against the Plaintiff on June 1, 2011 is revoked.

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

The same shall apply to the order.

1. Details of the disposition;

A. On November 29, 2001, the Defendant designated, pursuant to Article 6 of the former Cultural Heritage Protection Act (amended by Act No. 6656, Feb. 4, 2002) (amended by Act No. 6656, Feb. 4, 2002), State-designated cultural properties (hereinafter “instant cultural properties designation”), “Thoan ○○○○○○○○○○○○○○○○○○○○○○○○○○○○,” and also included forest land owned by the Plaintiff ( Address 2 omitted) and 455,074 square meters (hereinafter “instant land”).

B. The head of Taean-Gun entrusted the Defendant with the business of compensating for the land, etc. included in the cultural heritage zone of this case. The procedure of acquiring land, etc. under the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Public Works Act”) was conducted, but it was not acquired due to a lack of budget, etc

C. On March 10, 2011, the Plaintiff requested the Defendant and Taean-gun to acquire the instant land by consultation, but Taean-gun failed to comply with the procedure for acquisition by consultation. On May 11, 2011, the Plaintiff filed a claim for adjudication against the Defendant and Taean-gun pursuant to Article 30(1) of the Public Works Act, but the Defendant respondeded on June 1, 201 that the Cultural Heritage Administration is not obliged to file an application for adjudication under Article 30(2) of the Public Works Act (hereinafter “instant reply”).

[Reasons for Recognition] Unsatisfy, entry of Gap evidence 1 to 14, the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

The defendant shall undergo procedures for consultation with the landowner in accordance with the Cultural Heritage Protection Act and the Public Works Act, and if an application for adjudication is filed due to no agreement, the defendant shall be obligated to file an application for adjudication with the Central Land Expropriation Committee within 60 days. Nevertheless, the defendant has no obligation to file an application for adjudication even after receiving a claim for adjudication from the plaintiff. This is an illegal

B. The defendant's main defense

The purport of Article 83 of the Cultural Heritage Protection Act is to efficiently expropriate or use the instant land when the Defendant deems it necessary for the preservation and management of cultural heritage, and even if the Defendant does not recognize such necessity, Article 30 of the Public Works Act is not applicable to the Plaintiff. Therefore, in the instant case where the Defendant does not recognize the necessity of the expropriation or use of the instant land, the Plaintiff does not have the right to file an application for adjudication under the relevant laws and regulations, since Article 30 of the Public Works Act does not apply to the Plaintiff, and there is no right to file an application for adjudication under the said Act. Moreover, the instant reply does not affect the Plaintiff’s rights and obligations, and thus, the instant reply cannot be deemed a rejection disposition that is subject to appeal or appeal litigation.

3. Relevant statutes;

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

4. Determination

A. Whether the instant lawsuit is lawful

(1) If a citizen’s refusal of an administrative agency’s refusal of an action following the citizen’s affirmative filing of an appeal constitutes an administrative disposition subject to appeal litigation, the refusal of an action must be an exercise of public authority or an equivalent administrative action, and the refusal of an action must cause changes in the applicant’s legal relationship, and the citizen must have the right to file an appeal in accordance with the law or sound reasoning to demand that the citizen stop such action. Furthermore, the existence of an application right, which serves as a prerequisite for recognizing a disposition of rejection, shall be determined abstractly in a specific case without considering who the applicant is the applicant’s right to file an appeal, and it shall not mean the right to obtain the satisfactory result of the refusal of an application exceeding the right to receive a simple response in accordance with the application. Thus, if a citizen makes an application and it appears that an individual right to file an appeal against an administrative action is recognized, the refusal of an action shall be deemed a disposition that becomes the subject of appeal litigation, and it shall be determined specifically within the extent to which the application can be accepted (see Supreme Court Decision 2009Du3638, Sept. 26, 20009).

(2) As in the instant case, in cases where the designation of cultural properties is deemed as project approval and announcement of project approval under the Public Works Act pursuant to Article 83(2) of the Cultural Heritage Protection Act, it is reasonable to deem that the Plaintiff and the same landowner have the right to file an application for adjudication under Article 30(1) of the Public Works Act, considering the following points.

(1) The purport of the right to request a ruling is to protect the interests of landowners, etc. who have no right to request a ruling at any time within a certain period from the date of the public announcement of project approval, while owners of land have no right to request a ruling, and to ensure fairness between the parties to expropriation at the same time (see Supreme Court Decision 97Da13016, Nov. 14, 1997). In a case where a project operator is entitled to request a ruling at any time as a project approval agenda, the designation of cultural heritage for which the project operator can request a ruling at any time is recognized

② Article 83(2) of the Cultural Heritage Protection Act provides that a project operator may file an application for adjudication without a limit of the period by deeming the designation of cultural heritage as project approval under the Public Works Act, but excluding the application of the provisions on invalidation of project approval. If a project operator does not recognize a landowner’s right to file an application for adjudication, the landowner has no choice but to accept an uncertain legal relationship with respect to expropriation for a long time without receiving any compensation if the project operator does not follow the consultation procedure itself.

③ Even in light of the special characteristics of the designation of cultural heritage, such as the fact that the preservation of cultural heritage can be deemed as a whole obligation of the people, and that the restriction on people’s property rights due to the preservation of cultural heritage can be deemed as a social limitation of property rights, the mere fact alone does not constitute grounds for excluding the claim for adjudication, which is a procedural right established by the Public Works Act, in order

(3) In addition, if the above legal principles and the above related provisions do not regard the defendant's rejection of an application for adjudication as an administrative disposition that is subject to appeal litigation, the defendant's response to this case constitutes an administrative disposition that is subject to appeal litigation as it is an exercise of public authority or an equivalent administrative action, and thus there is no other way to dispute against the restriction on property rights due to the designation of cultural heritage in this case.

Therefore, the defendant's main defense is without merit.

B. Whether the instant disposition is lawful

① According to the Public Works Act, in order for a landowner to seek compensation for a project operator by means of administrative litigation for the land for which compensation is disputed, the competent Land Tribunal’s adjudication must be first received. Since only the project operator may file an application for adjudication, it is necessary to recognize the project operator’s obligation to apply for adjudication in order to invalidate the system of claiming a prompt confirmation of legal relations surrounding expropriation. ② If the project operator can decide whether to apply for adjudication, it is against the purport of the system of claiming a request for adjudication, such as protecting landowners’ interests, and there is no reason to see that the designation of cultural properties deemed project approval under the Public Works Act, and ③ the Land Tribunal may dismiss the application after judging whether to accept the land to the extent that it does not make it impossible to implement the project. Therefore, it is reasonable to deem that the defendant who has received the request for adjudication is liable to apply for adjudication of expropriation to the competent Land Tribunal. Therefore, the defendant’s disposition of this case is unlawful

5. Conclusion

Thus, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning. Since the judgment of the court of first instance which dismissed a lawsuit is unfair on the grounds of its conclusion, it is accepted by the plaintiff's appeal and revoked it, but this case has been deliberated to the extent that it can render a judgment on the merits of this case, it is so decided as per Disposition by the party member under Article 8 (2) of the Administrative Litigation Act and Article 418 of the Civil Procedure

[Attachment Omission of Related Acts]

Judges Ansan-jin (Presiding Judge)