208Revocation of revocation of permission to occupy and use a road

A (50 years old, South)

Attorney Kang Jae-soo, Counsel for the defendant-appellant

Law Firm Barun International

[Defendant-Appellant]

Head of Busan Construction Administration

July 24, 2008

September 4, 2008

1. The revocation of the permission granted by the Defendant to occupy and use the road on April 17, 2007 by the Plaintiff is revoked.

2. The costs of the lawsuit shall be borne by the defendant.

The order is as set forth in the text.

1. Details of the disposition;

A. On April 11, 200, the Plaintiff obtained permission to occupy and use (the purpose of occupation and use: the purpose of use for agriculture: the period from the date of permission to December 31, 2009; hereinafter referred to as the "permission to occupy and use the road of this case") with respect to the following: Defendant (the actual performance of duties was in charge of the construction office of permanent national highway under the internal delegation provision) with respect to the annual salary of 4,423 meters (the annual salary in writing other than in the border border road site belonging to the 3rd National Road site; hereinafter referred to as the "road of this case").

B. Since the Defendant, at the regular audit of the Ministry of Construction and Transportation in 2005, the occupation and use of a road to be used prior to agriculture cannot be subject to the permission of the occupation and use of the road in accordance with related Acts and subordinate statutes, such as the Road Act, and thus, it was pointed out that the permission of the instant road occupation and use of the Plaintiff was unlawful. On April 17, 2007, the Defendant revoked the permission of the instant road occupation and use on the ground that the occupation and use of the instant road is not subject to the permission of the occupation and use of the road under Article 40(2) of the Road Act and Article 25(4) (5) of the Enforcement Decree of the Road Act.

[Ground of recognition] The facts without dispute, Gap evidence 1-2, Gap evidence 2-1, 2-2, 3, and Gap evidence 10, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The Plaintiff’s assertion (1) even if the permission to occupy and use the road of this case is in violation of the statutes, the Plaintiff is using the road of this case as farmland by investing more than KRW 100 million trust in trust of the legality and continuity of the permission to occupy and use the road of this case. Since the Plaintiff’s trust should be protected, the disposition of this case revoked the permission to occupy and use the road of this case is unlawful. (2) The Defendant did not give disadvantages to the Plaintiff but did not give an opportunity to state opinion as provided by Article 22(3) of the Administrative Procedures Act. Thus, the disposition of this case is procedural error.

(b) Related statutes;

As shown in the attached Form.

C. Determination

According to Articles 21(1) and (4) and 22(1) through (4) of the Administrative Procedures Act, where an administrative agency imposes an obligation on a party or imposes a restriction on his rights and interests, it shall notify the party concerned of the facts and legal grounds for the disposition, the purport that the party concerned may submit his opinion, the method of handling the case where the administrative agency fails to present his opinion. Even if other Acts and subordinate statutes provide that the hearing is held or the public hearing is not held, the party concerned shall be given an opportunity to present his opinion. However, in cases where there are reasonable grounds to believe that the hearing of opinion is considerably difficult or unnecessary due to the nature of the disposition in question, prior notice or hearing of opinion may not be made. Thus, in rendering an infringing administrative disposition, unless prior notice or hearing of opinion is given to the party concerned, unless there is an exceptional case where the administrative agency does not give such prior notice or giving him an opportunity to present his opinion, and thus, such disposition may not be revoked by unlawful means (see Supreme Court Decision 9Du5870, Nov. 14, 2000).

In light of the above legal principles and relevant Acts and subordinate statutes, the disposition of this case is revoked, which is a beneficial administrative disposition, and thus constitutes an infringing administrative disposition, and does not require a hearing or public hearing. However, the disposition of this case cannot be deemed to fall under the case of Article 21 (4) of the Administrative Procedures Act, such as where there are reasonable grounds that it is difficult or clearly unnecessary in light of the nature of the disposition concerned, and thus, the defendant should have given the other party advance notice or given the opportunity to present his opinion. According to each of the evidence No. 1 through No. 6 (including each number) of the Administrative Procedures Act, the defendant did not comply with the above disposition of this case, and thus, it cannot be deemed to have any other reason for the cancellation of the permission to occupy and use the road of this case to the plaintiff or to have provided the other party with an opportunity to present his opinion within the time limit for the completion of the permission of this case (the first three times after the completion of the permission of this case was not completed, but it cannot be deemed to have been unlawful.

3. Conclusion

Then, the plaintiff's claim is reasonable, and it is decided as per Disposition by admitting it.

The presiding judge shall have the effect of a judge.

Judges Park Jong-sung

Judges Park Gin-uri