[1] In a case where an administrative disposition goes against a judicial judgment and without a reasonable ground even though it is not clear whether the meaning of the requirements for the administrative disposition is the only meaning of the requirements for the administrative disposition to be null and void as a matter of course, but there is a clear judgment by the court or the Constitutional Court, and the administrative agency has no legal impediment in interpreting and applying the provisions of Acts and subordinate statutes, whether the defect is objectively obvious (affirmative)

[2] In case where a housing redevelopment project operator imposes a charge on a housing redevelopment project operator on the basis of Article 2 subparagraph 2 (b) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents under the proviso of Article 5 (1) of the former Act on Special Cases concerning the Securing of School Sites, etc., whether the charge should be imposed on the remainder after excluding the portion of cash settlement in addition to the portion of the portion of

[3] In a case where a decision of inconsistency with the Constitution has been made on the grounds of an indivative disposition that imposes and collects charges according to the legal requirements and there is no legislative amendment, whether an administrative agency shall not impose charges for the same purport as the one that is found unconstitutional by judicial judgment (affirmative) / Whether an administrative agency is obligated to continue to apply the statutes that are unconstitutional (negative); and whether an administrative agency has a legal disability in failing to impose charges as above (negative)

[1] In order for an administrative disposition to be deemed null and void as a matter of course, it is insufficient to say that there is an illegality in the disposition, and its defect should be objectively obvious as it is a significant violation of the law.

In particular, even if there is room for dispute over the interpretation of the statutory provisions alone because the meaning of the disposition requirement is not clear, it is reasonable to view that there is a clear judgment by the court or the Constitutional Court on whether the pertinent statutory provisions are unconstitutional and the scope thereof, and the specific meaning of the disposition requirement as prescribed by the statutes. If an administrative agency takes an administrative disposition contrary to a judicial judgment without any reasonable ground even though there is no legal obstacle to the interpretation and application of the statutory provisions in accordance with such a determination

[2] The former Act on Special Cases Concerning the Securing, etc. of School Sites (amended by Act No. 13006, Jan. 20, 2015; hereinafter “former Act”) stipulates special cases concerning the creation, development, and supply of school sites and the bearing of related expenses to facilitate securing, etc. of school sites (Article 1). The imposition of charges on the implementor of a development project to appropriate funds necessary therefor is due to the fact that the implementor of the development project caused the need to secure such school facilities. Therefore, even in the case of construction of multi-family housing by implementing a housing redevelopment project, the imposition of charges is correct on the basis of the newly supplied housing and creating the need to secure school facilities.

However, there is no difference in that the share of the association members and the share of cash settlement in the housing redevelopment project do not cause the necessity of securing school facilities because all of the share of the association members and the share of cash settlement in the housing redevelopment project are not newly supplied. Therefore, when imposing the share on the housing redevelopment project operator on the basis of the share of the "housing redevelopment project" under Article 2 subparagraph 2 (b) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents among the proviso of Article 5 (1) of the former School Sites Act, the share of the association

[3] Even if the statutes based on the beneficial disposition do not provide for the grounds for the disposition of profits, such as payment to a specific type, on the ground that it is unconstitutional, administrative agencies cannot make specific beneficial disposition to the relevant type prior to the legislation of improvement related thereto. However, it is clear that, in cases where intrucing disposition imposing and collecting charges according to the requirements for disposition prescribed by the law, even if there is no additional legislation, administrative agencies should not impose charges for the same purport as determined unconstitutional according to judicial judgment. Furthermore, this conclusion is naturally attributable to the rule of law in order to ensure uniformity and consistency of the legal order, and thus, administrative agencies cannot be deemed to have a duty to continue applying the statutes unconstitutional, and administrative agencies cannot be deemed to have any legal impediment in failing to do so.

[1] Article 19 of the Administrative Litigation Act / [2] Articles 1 and 5 (1) 5 of the former Act on Special Cases Concerning the Securing, etc. of School Sites (Amended by Act No. 13006, Jan. 20, 2015) / [3] Articles 1 [general Administrative Disposition] and 19 of the Administrative Litigation Act

[Defendant-Appellant] Plaintiff 1 and 2 others (Law Firm Han-ho, Attorneys Kim Dong-ho et al., Counsel for defendant-appellant)

The head of Dongdaemun-gu Seoul Metropolitan Government (Attorney Song-yang, Counsel for defendant-appellant)

Seoul High Court Decision 2016Nu35672 decided December 2, 2016

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. In order to ensure that an administrative disposition is null and void as a matter of course, it is insufficient to say that there is an illegality in the disposition, and such defect is a serious violation of important parts of Acts and subordinate statutes, and objectively obvious;

In particular, even if there is room for dispute over the interpretation of the statutory provisions alone because the meaning of the disposition requirement is not clear, it is reasonable to view that there is a clear judgment by the court or the Constitutional Court on whether the pertinent statutory provisions are unconstitutional and the scope thereof, and the specific meaning of the disposition requirement as prescribed by the said statutes. If an administrative agency takes an administrative disposition contrary to a judicial judgment without any reasonable ground even though there is no legal obstacle to the interpretation and application of the statutory provisions according to such a determination,

2. A. Article 5(1)5 proviso of the former Act on Special Cases Concerning the Securing, etc. of School Sites (amended by Act No. 13006, Jan. 20, 2015; hereinafter “former School Site Act”) provides for exceptions to the subject of imposition of charges for school sites (hereinafter “charges”) under Article 5(1)5 of the former Act on Special Cases Concerning the Maintenance, etc. of Urban Areas and Dwelling Conditions for Residents and the owners of land and buildings in a rearrangement project area under Article 2 subparag. 2(b) through (d) of the Act on the Maintenance, Improvement, etc. of Urban Areas and Dwelling Conditions for Residents (hereinafter “shared portion

However, on April 24, 2014, the Constitutional Court rendered a ruling of inconsistency with the Constitution (hereinafter “instant legal provisions”) stating that “The foregoing legal provisions continue to apply until legislators amend the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “instant Constitutional Court en banc Decision 201Hun-Ga33, Apr. 28, 2014”) on the ground that “The number of households to be reverted to a third party is not increased as a result of the general sale of the households to be reverted to the existing owner, and thus, the number of households does not increase. Therefore, it would be unreasonable to impose charges on the said households, and therefore it would be contrary to the principle of equality to exclude the portion of cash liquidation from the subject of imposition of charges.”

After that, the legal provision of this case was revised on January 20, 2015 to "..., where the number of households in the relevant improvement zone does not increase as a result of the implementation of the improvement project," and excluded from the subject of the charge of cash settlement in addition to the portion of the association members, but the amendment provision pursuant to the provisions of the Addenda (Act No. 13006, January 20, 2015) applies from January 20, 2015.

B. The former Act on the Establishment, Development, and Supply of School Sites (Article 1) provides special cases concerning the creation, development, and supply of school sites and the bearing of related expenses to secure school sites (Article 1). The imposition of charges to the implementor of a development project would have induced the need to secure such school facilities. Therefore, even in the case of construction of multi-family housing by implementing a housing redevelopment project, the imposition of charges shall be determined based only on the portion of development projects creating the need to secure school facilities by supplying new housing.

However, there is no difference in that the share of the association members and the share of cash settlement in the housing redevelopment project do not require the need for school facilities because all of the share of the association members and the share of cash settlement are not newly supplied. Therefore, when imposing the share on the housing redevelopment project operator based on the legal provisions of this case, the charges should be imposed on the remainder after excluding the share of the association members as well as the share of cash settlement from the share of the association members. In the same purport, the Constitutional Court has confirmed the unconstitutionality of the legal provisions of this case, but it has

C. As above, inasmuch as there was a clear judicial judgment that the legal provision of this case shall not impose charges on the portion of cash liquidation as well as on the portion of cash liquidation, it is evident that an administrative agency shall not impose charges on the portion of cash liquidation in accordance with such judgment. Even if there is a decision not consistent with the Constitution on the ground that the statutes on the basis of the beneficial disposition do not provide for the grounds for the disposition of revenue, such as payment to a specific type, the administrative agency may not take a specific beneficial disposition before the relevant improvement legislation is made. However, in cases where imposing and collecting charges in accordance with the legally prescribed disposition requirements, it is apparent that the administrative agency shall not impose charges for the same purpose as found unconstitutional even without any additional improvement legislation. Furthermore, this conclusion is naturally bound by the rule of law in order to secure the unity and consistency of the legal order, and thus, it cannot be deemed that the administrative agency has a duty to continue to apply the unconstitutional law to the administrative agency, and there is no legal impediment in the administrative agency’s failure to impose charges as above.

3. After the decision of inconsistency with the Constitution of the Republic of Korea was rendered on September 29, 2014, the lower court recognized that the Defendant rendered a disposition of inconsistency with the Constitution of the Republic of Korea that imposed charges including the part of cash settlement pursuant to the legal provisions of the instant case against the Plaintiff on September 29, 2014, and, when applying the legal provisions of the instant case, determined that the charges shall not be imposed on the case where “where the number of households does not increase compared to the existing households” was clearly indicated by the decision of inconsistency with the Constitution of the instant case, and there

In light of the above legal principles, the judgment of the court below is just, and contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles regarding the invalidation of disposition, or by exceeding the bounds of the principle of free evaluation

4. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-hyung (Presiding Justice)