In a case where an administrative agency that handles civil petitions fails to give prior notice of the schedule, etc. of the civil petition when holding a civil petition coordination committee for deliberation, coordination, etc. as part of the one-time visit civil petition processing procedure, whether there is any defect to the extent of the grounds for revocation in the disposition of refusal by the head of the administrative agency on civil petitions (negative), and where

As part of the one-time visit civil petition conciliation committee, even if the administrative agency handling civil petitions did not give prior notice of the schedule, etc. to the civil petitioner as part of the procedure to conduct the one-time visit civil petition conciliation system, such circumstance alone is difficult to deem that there was any defect to the extent of grounds for revocation in the refusal disposition by the head of the administrative agency on the civil petition immediately. However, in cases where the disposition of refusal by the head of the administrative agency is discretionary act due to the defect in the above prior notice, if there are specific circumstances that can be viewed as non-exercise or neglect of discretionary power, such as omitting matters to be included in the subject to consideration in the process of deliberation by the civil petition conciliation committee,

Articles 2 subparag. 2 and 24(1) and (3) of the former Civil Petitions Treatment Act (Amended by Act No. 11492, Oct. 22, 2012); Articles 36(1) and 37(1) and (6) of the former Enforcement Decree of the Civil Petitions Treatment Act (Amended by Presidential Decree No. 22975, Jun. 21, 201);

Plaintiff (Law Firm Cho & Lee, Attorneys Jeong Jin-jin, Counsel for plaintiff-appellant)

Head of Gu Eup/Myeon (Attorney Go Young-young, Counsel for defendant-appellant)

Gwangju High Court ( Jeju) Decision 2012Nu432 decided December 12, 2012

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

The grounds of appeal are examined.

1. Article 2 Subparag. 2 of the former Civil Petitions Treatment Act (amended by Act No. 11492, Oct. 22, 2012; hereinafter “Civil Petitions Treatment Act”) provides that “Civil petition affairs” means affairs concerning a civil petitioner’s request for a specific act, such as a disposition, against an administrative agency (hereinafter “civil petition affairs”). Article 24(1) provides that “The head of an administrative agency shall, in handling civil petition affairs, directly conduct all procedures following confirmation of materials inside the administrative agency, cooperation with the relevant agency and department, etc. by having the public official in charge conduct the one-time visit civil petition treatment system so that the civil petitioner does not visit the administrative agency again for unnecessary reasons by establishing the one-time visit civil petition treatment system.” Meanwhile, Article 24(3) provides that “the operation of the committee to deliberate on complex civil petitions” in subparagraph 3 and “the committee established to deliberate on and coordinate civil petitions” in subparagraph 4 as one of the procedures for reexamination.

In addition, Article 36(1) of the former Enforcement Decree of the Civil Petitions Treatment Act (amended by Presidential Decree No. 22975, Jun. 21, 201; hereinafter “Enforcement Decree”) provides that the head of an administrative agency shall establish and operate a working-level comprehensive council under his/her jurisdiction to deliberate on complex civil petitions. The main sentence of Article 37(1) provides that the head of an administrative agency shall establish and operate a civil petition coordination committee in order to deliberate on and coordinate matters falling under any of the subparagraphs of Article 37(1). Article 37(4) provides that “The feasibility of the application of the laws and regulations on civil petitions decided by the competent processing department or the working-level comprehensive council under Article 36” in subparagraph 7 provides that “other matters referred by the head of the agency for comprehensive review and coordination of civil petitions,” and Article 36(6) provides that “When the chairperson holds a civil petition coordination committee, he/she may give prior notice so that civil petitioners may attend a meeting.” In such cases, where a civil petitioner may not present his/her opinion.

According to the contents and purport of the above provisions related to civil petition treatment-related Acts and subordinate statutes, the primary purpose of the one-time visit civil petition treatment system is to reduce the inconvenience and burden of civil petitioners by treating complex civil petitions related to a large number of administrative agencies or departments by making a joint deliberation, etc. by the relevant administrative agencies and departments on one-time visit. The civil petition mediation committee is established and operated as one of the procedural elements for the implementation of the one-time visit civil petition treatment system. The subject of deliberation and mediation is not matters related to the so-called infringing administrative dispositions that impose duties on the parties or restrict their rights and interests, but matters related to specific acts requested by the civil petitioners against the administrative agencies. Therefore, even if considering the transparency and responsibility of the civil petition treatment process process and the efficiency and efficiency of the civil petition administration for the incidental purpose of the one-time visit civil petition treatment system, the civil petitioners may request the civil petitioners to hold the civil petition mediation committee under the Acts and subordinate statutes and give prior notice to the civil petitioners of the meeting can be interpreted as inconvenience and burden of the civil petitioners, and the purpose of the civil petition mediation committee is different from the legislative purpose and the civil petition procedure.

In full view of the above circumstances, even if an administrative agency dealing with civil petitions did not give prior notice of the meeting schedule, etc. as part of the one-time visit civil petition conciliation committee for the deliberation and conciliation of civil petitions as part of the procedure for the execution of the one-time visit civil petition conciliation system, such circumstance alone does not immediately lead to the existence of defects to the extent that there is reason for revocation. However, in a case where the disposition of rejection by the head of an administrative agency is discretionary act, if the lack of prior notice as mentioned above gives the civil petitioner an opportunity to state his/her opinion, if there are specific circumstances that can be seen as non-exercise or neglect of discretionary power, such as omitting matters to be included in the subject of consideration during the deliberation process of the civil petition conciliation committee, such disposition of rejection is illegal

2. The lower court: (1) on January 11, 201, the Plaintiff filed a construction report to construct housing on the instant forest land (hereinafter “instant building report”); (2) on February 17, 201, the instant building report is deemed to have obtained permission for development activities under the National Land Planning and Utilization Act and permission for mountainous district conversion under the Mountainous Districts Management Act upon receipt of the report; and (3) on February 16, 201, the Defendant held a civil petition conciliation committee on February 16, 201 pursuant to Article 24(3)4 of the Civil Petitions Processing Act and Article 37(1)7 of the Enforcement Decree of the Civil Petitions Processing Act to deliberate on whether to accept the report; (4) the Defendant did not notify the Plaintiff of the meeting schedule, etc. of the civil petition conciliation committee without the Plaintiff’s attendance; and (2) on February 17, 2011, the Defendant rejected the instant building report on the grounds for disposition by failing to meet the requirements for permission for development activities and consultation on conversion; and (2) determined that it did not accept the report.

3. However, considering the above facts in light of the legal principles as seen earlier, even if the Defendant did not notify the Plaintiff of the schedule of the meeting in order to process the Plaintiff’s construction report of this case, it is difficult to deem that the Defendant’s rejection of the construction report of this case immediately constitutes an unlawful act of revocation of the Defendant’s disposition, such as omitting matters to be considered in the process of deliberation by the civil petition coordination committee or the return disposition of the building report of this case due to the defects in the above prior notice, and there is an error of deviation or abuse of discretion by the Defendant’s disposition.

Nevertheless, the lower court concluded that the return disposition of the instant building report was unlawful solely on the grounds of the lack of prior notice on the meeting schedule of the civil petition conciliation committee. In so doing, the lower court erred by misapprehending the purpose of the deliberation procedure of the civil petition conciliation committee as prescribed by the Civil Petitions Conciliation Commission Act and the legal principles on the defect effect of the prior notice of the meeting schedule, thereby adversely affecting the conclusion

4. 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)