[1] Legal nature of permission for use and profit-making of the office of administration of public property for the administrative property donated pursuant to Article 75 of the former Local Finance Act (=administrative disposition)

[2] Whether an administrative litigation may be instituted independently on the period of permission for use or profit-making among permission for use or profit-making of the donated administrative property (negative)

[1] Permission for use or profit-making of the administrative property by the administration agency of public property is not a private act conducted as a private economic entity, but an administrative disposition conducted in the superior position of the public authority by the administration agency. In addition to the legislative purport of the Local Finance Act and relevant provisions such as the Enforcement Decree thereof, which intends to protect the administrative property and ensure its proper maintenance, preservation, operation, etc., the local finance Act and the Enforcement Decree thereof, which allow disposal of the miscellaneous property, but it does not permit such disposal unless it obtains permission for use or profit-making within the extent that it does not interfere with its use or purpose, and it does not change the nature of permission for use or profit-making of the miscellaneous property. In light of the contents of Articles 82 (1) and 83 (2) of the former Local Finance Act (amended by Act No. 5647 of Jan. 21, 199), which prohibit such disposal.

[2] The subsidiary officer of the administrative act can not be the subject of the administrative litigation independently except for the case of bearing the burden, and the period of permission for use and profit-making of the donated administrative property determined by the managing authority of the public property shall not be the subsidiary officer of the administrative act to restrict the validity of the permission, and the period of permission for use and profit-making of the donated administrative property may not be the

[1] Articles 75, 82(1), and 83(2) of the former Local Finance Act (amended by Act No. 5647 of Jan. 21, 1999); Articles 83(1) of the former Enforcement Decree of the Local Finance Act (amended by Presidential Decree No. 16983 of Oct. 20, 200); Articles 1 [general administrative disposition] and 2 of the Administrative Litigation Act / [2] Articles 75, 82(1), and 83(2) of the former Local Finance Act (amended by Act No. 5647 of Jan. 21, 1999); Articles 83(1) and 83 of the former Enforcement Decree of the Local Finance Act (amended by Presidential Decree No. 16983 of Oct. 20, 200); Articles 1, 22, and 19 of the Administrative Litigation Act

[1] Supreme Court Decision 95Nu11023 decided Feb. 13, 1996 (Gong1996Sang, 987) Supreme Court Decision 96Nu17325 decided Apr. 11, 1997 (Gong1997Sang, 1472) Supreme Court Decision 97Nu1105 decided Feb. 27, 1998 (Gong1998Sang, 923) / [2] Supreme Court Decision 86Nu202 decided Aug. 19, 198 (Gong1986, 1246) (Gong1986), Supreme Court Decision 90Nu8503 decided Dec. 13, 191 (Gong1992, 534), Supreme Court Decision 90Nu3932939 decided Oct. 8, 193 (Gong19934).

Handuk Development Co., Ltd. (Law Firm Don Law, Attorneys Yang Chang-soo et al., Counsel for the plaintiff-appellant)

Seoul Large Park Management Director (Attorney Park Jae-il, Counsel for the defendant-appellant)

Seoul High Court Decision 97Gu34589 delivered on December 17, 1998

The part of the lower judgment regarding the ancillary claim is reversed, and that part of the case is remanded to the Seoul High Court. The remainder of the Plaintiff’s appeal is dismissed

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

1. Summary of the judgment below

According to the reasoning of the judgment below, on April 20, 190, the court below held that among the permission of this case, the plaintiff's use and profit-making period for 40 years as the permission of this case applied by the plaintiff and sought revocation of the remainder of the permission period, the court below's conjunctive action against the plaintiff seeking revocation of the permission of this case's conjunctive action against the plaintiff's use and profit-making period for 20 years as the permission of this case's use and profit-making under the former Enforcement Decree of the Urban Park Act (amended by Act No. 4571 of Aug. 5, 1993), the local government established the facility of this case and contributed it to Seoul Special Metropolitan City on March 14, 1997 by the defendant entrusted with the authority of the Seoul Special Metropolitan City Mayor (hereinafter referred to as "permission of this case") and it is unlawful for the plaintiff to use the facility of this case for free use or profit-making for 20 years as the main body of the donation and profit-making under the former Enforcement Decree of the Local Finance Act (amended by Presidential Decree No. 1383.

2. As to the main claim

Permission for use or profit-making of the administrative property by the administration agency of public property is not a private act conducted as a private economic entity, but an administrative disposition conducted in a superior position with public authority by the administration agency (see, e.g., Supreme Court Decisions 96Nu17325, Apr. 11, 1997; 97Nu1105, Feb. 27, 1998; 97Nu1105, Feb. 27, 1998); and in addition to the legislative purport of the Local Finance Act and the Enforcement Decree thereof, the Local Finance Act, which intends to protect the administrative property and ensure appropriate maintenance, preservation, operation, etc., of the administrative property, and in addition to the legislative purpose of the relevant provisions, it is possible to take such disposition as lending or selling the administrative property, but it is not possible to take such disposition unless permission for use or profit-making has been obtained within the extent of not impeding its use or purpose. In light of Articles 82(1) and 83(2) of the former Local Finance Act (amended by Act, Jan. 21, 75).

Therefore, it cannot be said that the court below erred in holding that the primary claim of this case is unlawful on the ground that the permission for use of and profit from the facilities of this case or the decision for the period of use and profit-making is an act under private law.

However, the subsidiary officer of the administrative act cannot be the object of the administrative litigation independently except for the case where he bears the burden (see, e.g., Supreme Court Decisions 86Nu202, Aug. 19, 1986; 90Nu8503, Dec. 13, 1991; 93Nu2032, Oct. 8, 1993); the period of permission for use and profit as determined by the defendant in the permission in this case is the subsidiary officer of the administrative act to restrict the validity of the permission in this case, and the period of permission for use and profit as determined by the defendant cannot be brought an administrative litigation independently for the period of permission for use and profit. Such a legal principle is equally applied to the main claim in this case where the plaintiff seeks the revocation of the part against which the plaintiff applied for permission in this case among the permission in this case. Accordingly, the main claim in this case cannot be dismissed as unlawful.

Therefore, the conclusion that the court below rejected the main claim of this case is just, and there is no error of law by misunderstanding the legal principles as to the conclusion of the judgment. The ground of appeal disputing this point is rejected.

3. As to the conjunctive claim

As seen earlier, although permission for use and profit-making of the administrative property donated by the public property administration is an administrative disposition conducted in the superior position of the public authority, the court below erred by misapprehending the legal principles on administrative disposition in determining that the conjunctive claim part of the lawsuit in this case is unlawful on the ground that permission for use and profit-making of the facilities in this case is not an administrative disposition, which affected the conclusion of the judgment (the permission in this case shall be deemed to be an essential element of administrative act, and if the permission in this case is illegal within the permission period, the entire permission in this case shall be deemed to be unlawful.). The ground of appeal pointing this out has merit.

4. Therefore, the part of the judgment below's conjunctive claim is reversed, and that part of the case is remanded to the court below. The remaining grounds of appeal are dismissed. It is so decided as per Disposition by the assent of all participating Justices

Justices Lee Jin-hun (Presiding Justice)