[1] In a case where a ruling has become final and conclusive, whether the facts or legal judgments, which form the basis of the disposition, are final and conclusive, and the parties or the court cannot make any arguments or judgments inconsistent with them (negative)

[2] Requirements for establishing State liability for damages due to delay in the decision of an administrative agency on whether to issue a disposition / The criteria for determining whether delay in the decision on whether to issue a disposition has lost objective legitimacy, and the criteria for determining whether delay in processing without justifiable grounds

[1] The adjudication on an administrative appeal has the effect of binding force on the administrative agency which is the respondent, so if the ruling authority orders the disposition agency to cancel the disposition by deeming that the request for the adjudication on the revocation is well-grounded, the disposition as the disposition agency must cancel the disposition in accordance with the purport of the adjudication. However, even in cases where the adjudication becomes final and conclusive, the factual or legal judgment which forms the basis of the disposition becomes final and conclusive, and the parties or the court cannot make any assertion or judgment inconsistent with it.

[2] It is difficult to readily conclude that a public official in charge of administrative disposition intentionally or negligently committed a tort on the ground that a considerable period of time has been delayed with respect to an application seeking disposition by an administrative agency. In light of a general public official’s standard, the public official in charge of administrative disposition satisfies the requirements for State liability under Article 2 of the State Compensation Act only when it is deemed that he/she lost objective legitimacy by delaying a decision on whether to issue a disposition in breach of objective duty of care. In such a case, whether an application loses objective legitimacy should be comprehensively taken into account the nature of the disposition, such as whether the disposition subject to the application is binding act or discretionary act, whether the applicant’s disadvantage was delayed due to the delay in the disposition, and whether the public official in charge of administrative disposition delayed the disposition without justifiable grounds; however, the liability for compensating damages should be determined by examining whether there is a substantial reason to impose on the State or the local government on the State or the local government. In this context, whether there was a malicious motive or intention of the administrative agency not to issue a disposition, and whether there was a possibility of delaying in dealing with the disposition.

[1] Article 49 of the Administrative Appeals Act, Articles 216 and 218 of the Civil Procedure Act / [2] Article 2 of the State Compensation Act

[1] Supreme Court Decision 92Nu17181 delivered on April 13, 1993 (Gong1993Sang, 1409) Supreme Court Decision 96Nu14050 Delivered on December 20, 1996, Supreme Court Decision 2002Du11288 Delivered on July 8, 2004 (Gong2004Ha, 1359)

Dajin Industrial Co., Ltd. (Law Firm Barun, Attorneys Park Jae-sik et al., Counsel for the plaintiff-appellant)

Full-time District Court Decision 201Na1448 decided May 2, 20

Gwangju High Court ( Jeonju) Decision 2012Na186 decided December 20, 2012

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the ground of appeal on the binding force of the ruling

A. The ruling of the administrative appeal has the effect of binding force on the administrative agency which is the respondent, so if the ruling agency orders the disposition agency to cancel the disposition by deeming that the request of the cancellation trial is well-grounded, the disposition agency should cancel the disposition in accordance with the purport of the ruling. However, even in cases where the ruling becomes final and conclusive because res judicata as in the ruling is not the same as that of the ruling, the factual or legal judgment which forms the basis of the disposition becomes final and conclusive, and it does not make any assertion or judgment inconsistent with the parties or the court bound by it (see Supreme Court Decisions 92Nu17181 delivered on April 13, 1993; 96Nu14050 delivered on December 20, 196).

Therefore, even if the ruling on August 25, 2010 rendered by the Jeollabuk-do Administrative Appeals Commission (hereinafter “the second ruling”) revoking the permission to collect earth and stones (hereinafter “instant permission disposition”) on March 5, 2010 limited to the permission period until December 31, 2013, which is the period of permission to occupy and use the river site used as the main entry into the river, becomes final and conclusive, the facts or legal judgments constituting the basis of the instant permission disposition are final and conclusive, and the parties or the court cannot make any assertion or judgment inconsistent with them. Thus, in the instant lawsuit claiming that the Plaintiff’s assertion against the Defendant is unlawful and thus, it cannot be said that the Defendant’s assertion is contrary to the binding force of the second ruling.

The argument in the grounds of appeal that the defendant cannot dispute the illegality of the permission disposition of this case against the plaintiff due to the binding force of the second ruling of this case cannot be accepted.

B. (1) The binding force of the adjudication is limited to the determination on specific grounds such as the order of the adjudication and the judgment on the requisite facts that form the premise thereof, i.e., the determination on the previous disposition, and even if the previous disposition was revoked by the adjudication, it does not conflict with the binding force of the previous disposition. Whether the same grounds are identical or different in this context shall be determined based on whether the grounds determined by the adjudication are identical in relation to the previous disposition and basic factual relations (see, e.g., Supreme Court Decision 2003Du7705, Dec. 9, 2005). The existence of the identity of basic factual relations is determined based on the same factual relations in the basic point of view, based on the specific facts before the legal assessment of the grounds for the disposition, and it cannot be said that the grounds for the addition or alteration have already been specified at the time of the previous disposition, and the parties had been aware of the fact (see, e.g., Supreme Court Decision 200Du55869, Nov. 26, 2009).

(2) The reasoning of the lower judgment and the record reveal the following facts.

(A) On March 24, 2009, the Plaintiff applied for permission to collect earth and stones for the purpose of the instant stone collection to the head of the Gun of Seoul Special Self-Governing Province by setting the period of permission as seven years from the date of permission, seven years from the date of permission, and the amount of earth and stone collected at 1,523,149 cubic meters (hereinafter “instant application”), and on August 12, 2009, the head of the Gun issued a non-permission disposition (hereinafter “instant non-permission disposition”).

(B) On August 31, 2009, the Plaintiff filed an administrative appeal against the instant non-permission disposition with the Jeollabuk-do Administrative Appeals Commission. On January 22, 2010, the Jeollabuk-do Administrative Appeals Commission rendered a ruling revoking the instant non-permission disposition on the following grounds (hereinafter “the first ruling”). In other words, the Plaintiff did not receive administrative instructions at least ten times for illegal acts disregarding the method of collection, and the Plaintiff distributed vulnerable non-speed areas that may affect the stability of private waters in the area of the instant Quarrying, and thus, it seems that a direct wall that may occur due to strong infiltration and extreme pressure, and that a direct wall was not generated due to the Plaintiff’s decline. The Plaintiff’s ground for non-permission cannot be considered to have been determined based on the ground that the Plaintiff’s ground for non-permission of the instant mountainous district management authority’s mountainous district management authority’s 10% or less of the Table No. 36(1) of the Enforcement Decree, which is the basis for non-permission of the instant mountainous district management authority’s mountainous district.

(C) However, on February 18, 2010, on the ground that the period of permission for the collection of earth and rocks was up to December 31, 2013, the head of the relevant Si/Gun sent to the Plaintiff a letter stating that the period of permission for the collection of earth and rocks should be modified equally, or that the period of permission for the collection of earth and rocks should be extended to seven years within the period of permission for the collection of earth and rocks, on the ground that the period of permission for the collection of earth and rocks was up to December 31, 2013. As the Plaintiff did not take any measure even after receiving such a written public notice, on March 5, 2010, the instant permission disposition limited the period of permission for the collection

(D) On April 14, 2010, the Plaintiff filed an administrative appeal again with the Jeollabuk-do Administrative Appeals Commission on the grounds that the period of permission for the collection of earth and rocks was reduced compared to the period of application for the collection of earth and rocks. On August 25, 2010, the Jeollabuk-do Administrative Appeals Commission rendered a second decision to the effect that “the head of the Gun of the Gun of the Gun of the Gun of the Gun of the Gun of the Gun of the Gun of the Gun of the Gun of the Republic of Korea” was unlawful on the ground that the period of permission for the occupation and use of a river site was up to December 31, 2013 on the ground that the period of permission for the collection of earth and rocks was illegal.”

(E) Since June 2, 2011, the head of the relevant Si/Gun notified the Plaintiff of the implementation of the permission to collect earth and stones in accordance with the Environmental Impact Assessment Act, to the effect that the permission to collect earth and stones in accordance with the second judgment should undergo prior consultation in accordance with the Environmental Impact Assessment Act, etc. for three times thereafter, and only upon the Plaintiff’s implementation of the procedure for such prior consultation, the head of the relevant Gun issued the permission to collect earth and stones

(3) Examining these facts in light of the legal principles as seen earlier, ① the grounds determined in the first ruling of this case are related to the relation between the stone collection site itself and the land consisting of its boundaries, and the binding force of the first ruling of this case is limited to the same grounds as determined in the order and ruling of this case, and the grounds based on the permission disposition of this case are pertaining to the river site used as the main entry of the Plaintiff, and thus, it cannot be said that the subject of the permission disposition of this case goes against the binding force of the first ruling of this case, since it is different from the grounds determined in the first ruling of this case. Furthermore, the ground for the implementation of the prior consultation procedure under the Environmental Impact Assessment Act cannot be deemed to go against the binding force of the second ruling of this case, even if the permission of this case was delayed due to the failure of the Plaintiff to implement it, it does not go against the second ruling of this case.

Therefore, the court below's rejection of the plaintiff's assertion that the delay of permission to collect earth and rocks upon the application of this case violates the binding force of the second ruling on the ground that the permission to collect earth and rocks is contrary to the binding force of the first ruling of this case and the implementation of the prior consultation procedure pursuant to the Environmental Impact Assessment Act, etc., is justifiable, and there is no error in the misapprehension of legal principles as to the legal nature of the application for permission to collect earth and

2. As to the ground of appeal on whether liability for damages was established

A. Part on the act of shortening the completion period of permission in the instant permission disposition

(1) On the ground that any administrative disposition is unlawful, it cannot be readily concluded that the pertinent administrative disposition constitutes a tort caused by a public official’s intentional or negligent act. In light of the public official’s standard, the public official in charge of administrative disposition should be deemed to have satisfied the requirements for State compensation liability under Article 2 of the State Compensation Act only in a case where the administrative disposition is deemed to have lost its objective legitimacy by neglecting his/her duty of care. In such a case, whether the administrative disposition has lost its objective legitimacy should be determined by taking into account various circumstances, such as the form and purpose of the administrative disposition, whether the person was involved in the act of infringement, the degree of involvement in the victim, the type of the infringed benefit, and the degree of damage, etc., and by examining whether there is a substantial reason to impose the responsibility for compensating for damage on the State or local government (see, e.g., Supreme Court Decision 2008Da

Meanwhile, since the collection of earth and rocks in forests directly affect the maintenance of the national land and nature and the preservation of the environment, even if such collection of earth and rocks constitutes a restricted area for collection of earth and rocks as prescribed by statutes, and even if such area does not fall under such restricted area, the permitting agency may refuse such permission when it deems it necessary for important public interest, such as the maintenance of the national land and nature and the preservation of the environment, considering the current state, location, surrounding circumstances, etc. of the land subject to the application for permission to collect earth and rocks. In such cases, whether serious public interest needs arise shall be determined by comprehensively taking into account the degree of damage to the forest and natural landscape, the necessity to protect surrounding cultural heritage and tourism resources, whether it is easy to restore easily after the collection of earth and rocks, whether the rivers, etc. used for agricultural water and potable water are likely to be polluted due to the collection of earth and rocks, the degree of suffering from nearby residents in the course of collecting earth and rocks, noise, vibration, etc., and the details of specific measures to prevent such damage (see, e.g.

(2) The reasoning of the lower judgment and the record reveal the following facts.

(A) On August 25, 1995, the Plaintiff obtained permission to collect aggregate for the purpose of collection of earth and rocks, 1,13,748 cubic meters, and from August 25, 1995 to August 30, 198. The Plaintiff obtained permission to collect aggregate for the purpose of collection of earth and rocks from September 21, 1998 to September 31, 1998, and from September 1, 1998 to August 31, 200. The Plaintiff obtained permission to collect earth and rocks from March 29, 200 to June 31, 200; the period of permission to collect aggregate for the purpose of collection of earth and rocks; the period of permission from March 20, 200 to August 31, 200; and the period of permission from March 20, 200 to December 31, 205 to December 31, 200.

(B) In the event that the Plaintiff obtained permission to occupy and use a river for four years from January 1, 2009 to December 31, 2013 in the course of obtaining such permission on several occasions, it is not deemed that the period of permission to occupy and use a river for four years from December 31, 2013 is considered in consideration of the period of permission to use a river.

(C) On August 31, 2009, the Plaintiff filed an administrative appeal against the instant non-permission disposition with the Jeollabuk-do Administrative Appeals Commission, and on January 22, 2010, the lower court rendered the first ruling that revoked the instant non-permission disposition on the grounds as seen earlier, but on the ground that, on February 18, 2010, the son-gun issued a written public notice to the Plaintiff, stating that the period of permission for the collection of earth and rocks on a river site used as the main entry is until December 31, 2013, the period of permission for the collection of earth and rocks should be changed to the same period of permission or that the period of permission for the collection of earth and rocks should be extended to seven years within the period of permission for the collection of earth and rocks on a river site, and on March 5, 2010, the instant permission disposition limited the period of permission for the collection of earth and rocks to December 31, 2013.

(3) The main sentence of Article 25(1) of the former Mountainous Districts Management Act (amended by Act No. 1031, May 31, 2010; hereinafter the same) provides that “any person who intends to extract or gather earth or stone in mountainous districts shall obtain permission to collect earth or stone from the Minister of the Korea Forest Service, as prescribed by Presidential Decree.” The main sentence of Article 25(3) provides that “the period for collecting earth or stone under the provisions of paragraph (1) shall be the period permitted by the Minister of Food, Agriculture, Forestry and Fisheries within the scope of ten years in consideration of the quantity of earth or stone collected, area of earth or stone collected, etc.” Article 28(1) provides that “the form of mountainous districts, organization of forest trees, and method of collecting earth or stone shall meet the standards prescribed by Presidential Decree” (Article 26(1)5); Article 26(1)5 of the former Mountainous Districts Management Act provides that “the economic feasibility of specialized agencies for collecting earth or stone shall be determined by Presidential Decree within the scope of 10 years prior to collect earth or stone.”

(4) Examining the foregoing factual basis in light of the relevant provisions, including the former Mountainous Districts Management Act, and the legal principles as seen earlier, it seems that the elements to consider the determination of whether there is a “serious public interest necessity” in refusing to grant permission for the collection of earth and rocks, since the matters on access roads for the collection of earth and rocks do not fall under the criteria for the collection of earth and rocks, requirements for the collection of earth and rocks, or the elements for determining the period of permission for the collection of earth and rocks. However, there is no evidence to deem that the matters on access roads for the collection of earth and rocks were specific and practical issues as the grounds for refusing to grant permission or restricting the period of permission for the collection of earth and rocks in relation to the maintenance of the national land and nature at that time, or the preservation of the environment at that time, and there is no evidence to deem that the head of Guns of Guns, while rendering the instant permission, may not recognize that the period of permission was limited until December 31, 20

However, since the period of permission to occupy and use a river site used by the Plaintiff as a main entry to December 31, 2013, if such permission is not extended, it would be difficult to achieve the purpose of permission to collect earth and rocks, and if permission to collect earth and rocks is granted in excess of the period of permission to occupy and use a river site, it would be likely that the appropriate management of the river would be impeded. Considering that the head of complete state Gun has applied the Plaintiff for the permission to change the period of permission to collect earth and rocks in the same manner as the period of permission to occupy and use a river site, or recommended the Plaintiff to extend the period of permission to set the period of permission to seven years for the collection of earth and rocks, and that the disposition of this case was taken in accordance with the period of permission to collect earth and rocks, it is difficult to deem that the reduction of the period of permission was to have reached the extent that

Therefore, the judgment of the court below that did not recognize the defendant's tort liability due to the permission disposition of this case is just and acceptable, and there is no error of law such as misunderstanding of legal principles as to the grounds for limiting the period of permission for collection of earth and rocks

B. Part concerning delay in permission to collect earth or stone upon the instant application

(1) It cannot be readily concluded that a public official in charge of administrative disposition intentionally or negligently committed a tort on the ground that a decision on whether to take a disposition by an administrative agency was delayed for a considerable period of time. In light of a general public official’s standard, the public official in charge of administrative disposition must be deemed to have satisfied the requirements for State liability under Article 2 of the State Compensation Act only in a case where the public official in charge is deemed to have lost objective legitimacy by delaying a decision on whether to take a disposition in breach of objective duty of care. In such a case, whether the public official in charge has lost objective legitimacy should be determined by comprehensively taking into account the nature of the disposition, including the nature of the disposition, such as whether the disposition, which became the subject of the request, is binding act, discretionary action, etc., the applicant’s disadvantage and degree, and whether the public official in charge of administrative disposition delayed the disposition without justifiable grounds. However, whether to delay the disposition without justifiable grounds should be determined by examining the practical reasons for imposing the responsibility to compensate for damages on the State or local government, but it should be determined by examining the specific circumstances or circumstances delayed based on the statutory processing or ordinary processing.

(2) According to the reasoning of the lower judgment and the record, ① the Plaintiff filed an administrative appeal against the instant permission disposition with the Jeollabuk-do Administrative Appeals Commission on April 14, 2010, and the Jeollabuk-do Administrative Appeals Commission rendered the instant permission disposition only until December 31, 2013, on the ground that it was unlawful for the Plaintiff to either cancel the instant permission disposition and grant the permission for collecting earth and rocks on the instant application, and the head of Gun issued the instant secondary adjudication to the effect that “the head of Gun completed the instant permission.” However, on the ground that the area designated to preserve the original form at the time of consultation on the environmental impact assessment in 2003 was included in the collection area, the head of Gun notified the Plaintiff of the implementation following the instant permission disposition, which was subject to prior consultation in accordance with the Environmental Impact Assessment Act, and that the instant permission disposition for collecting earth and rocks was subject to prior consultation on August 24, 201.

(3) Examining the above circumstances leading to the second ruling following the Plaintiff’s first ruling following the instant application in light of the legal principles as seen earlier, there is sufficient room to deem that, even though the instant second ruling was rendered, the head of the Gun of the Guns issued a corrective order for the second ruling of the Jeollabuk-do Administrative Appeals Commission until January 31, 201, which is the existing period of permission to collect earth and stones, was imposed, and notification of the implementation of permission to collect earth and stones in accordance with the instant second ruling was given to the Defendant under the order to correct the second ruling of the Jeollabuk-do Administrative Appeals Commission. It is reasonable to deem that, through the instant first ruling and the instant second ruling, it would be based on the intention to refuse to grant permission to collect earth and stones in accordance with the instant application clearly ordered to the head of the Gun with the head of the Guns. Accordingly, it is reasonable to deem that the Defendant is liable for damages under Article 2 of the State Compensation Act due to the violation of the State Compensation Act.

Nevertheless, the lower court determined that it cannot be held liable for delay of permission to collect earth and stones after the second ruling. In so doing, the lower court erred by misapprehending the legal doctrine on liability for damages caused by delay of illegal administrative disposition, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

3. As to the ground of appeal as to the occurrence of damages

A. Article 24(1) of the former Enforcement Rule of the Mountainous Districts Management Act (amended by Ordinance of the Ministry for Food, Agriculture, Forestry and Fisheries No. 95 of Nov. 27, 2009) provides that a person who intends to obtain permission to collect earth and stones or permission to change shall submit an application for permission to collect earth and stones (permission to change permission), along with a business plan, including “annual production and use plan,” etc., and Article 24(3) of the same Act provides that “annual production and use plan” as one of the “change of minor matters” that can be substituted by reporting to the Minister of the Korea Forest Service under the proviso to

Therefore, it is sufficient for a person who has obtained permission to collect earth and rocks to obtain more quantity than “annual production and use plan” under a business plan. As such, it cannot be deemed impossible for the Plaintiff to collect earth and rocks by obtaining permission again until the period of permission expires after collecting all the permitted quantity of earth and rocks. In the event that the Plaintiff collected more quantity of earth and rocks than “annual production and use plan” submitted when obtaining permission to collect earth and rocks, and when collecting all the permitted quantity of earth and rocks before January 31, 201, the Plaintiff obtained new permission to collect earth and rocks before January 31, 201, without examining whether additional collection of earth and rocks was possible before the expiration of the period of permission, without examining whether the Plaintiff collected all the permitted quantity of earth and rocks before January 31, 201, the expiration of the period of permission. It cannot be readily concluded that the Plaintiff was fully responsible for the Plaintiff’s failure to collect earth and rocks by January 31, 2011.

Furthermore, as seen earlier, insofar as there is sufficient ground to view that it was a tort to the effect that it was a notification for the execution of permission to collect earth and stones in accordance with the second adjudication rendered by the Jeollabuk-do Administrative Appeals Commission to the effect that it should undergo prior consultation in accordance with the Environmental Impact Assessment Act, only after it was subject to a corrective order following the ruling for acceptance of obligation obligation by the Governor of Jeollabuk-do Administrative Appeals Commission for the second adjudication, it is difficult to readily conclude that the Plaintiff did not cause any damage to the Plaintiff

B. Nevertheless, on the grounds indicated in its reasoning, the lower court determined that all damages up to January 31, 201 and damages up to October 21, 201 thereafter cannot be recognized as tort liability by the Defendant. In so doing, the lower court erred by misapprehending the legal doctrine on the validity of “annual production and use plan” submitted at the time of applying for permission to collect earth and stones and on the binding force of ruling, and by failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

4. 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 Jo Hee-de (Presiding Justice)