D Forest Industry Development Co., Ltd. (Attorney Lee Jae-soo, Counsel for the plaintiff-appellant)

Head of Seo-gu Daejeon Metropolitan City (Law Office of Daejeon, Attorney Han-won, Counsel for the defendant-appellant)

July 14, 2016

Daejeon District Court Decision 2015Guhap102568 Decided April 20, 2016

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

On September 2, 2014, the Defendant confirmed that the Defendant’s refusal to refund additional dues against the Plaintiff is null and void.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Details of the disposition;

The court's explanation on this part is the same as the statement on the grounds of the judgment of the court of first instance. Thus, this part of the court's explanation is accepted by Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Whether the lawsuit of this case is legitimate

A. As to whether the disposition is made

1) The defendant's assertion

If the additional dues are not paid by the payment deadline, the amount naturally arising pursuant to the provisions of the law and the amount thereof is determined. Thus, if the additional dues are received or held without any legal cause, they are unjust gains, and only by the refund decision, the claim for repayment is not fixed. Thus, the refusal of refund decision or the notification of refusal of refund by September 2, 2014 is not a disposition that specifically and directly affects the existence or scope of the claim for repayment, and thus, it is not a disposition that is subject to appeal litigation. Thus, the plaintiff's lawsuit

2) Determination

In a case where an administrative agency refuses to take action following the citizen's affirmative filing of an application, the refusal of the application constitutes an administrative disposition that is subject to appeal, if the action at issue is an exercise of public authority or an equivalent administrative action and the refusal of the application is a change in the applicant's legal relationship, and furthermore, if the citizen has a right to file an application under laws or cooking demanding that the act be conducted, the refusal by the administrative agency constitutes an administrative disposition that is subject to appeal (see Supreme Court Decisions 96Nu14036, Jul. 10, 1998; 2007Du1316, Oct. 11, 2007, etc.).

In full view of Article 8(4)1 and 2, Article 8(5), and Article 17(1) of the former Enforcement Decree of the Infrastructure Charges Act, and Article 15(2)2 and 3 of the former Enforcement Decree of the Infrastructure Charges Act, where a person liable to pay infrastructure charges pays additional charges prescribed by Presidential Decree where he/she has paid public infrastructure charges under Article 138 of the Local Autonomy Act or other charges under other Acts, or where the amount equivalent to the amount of installation charges that has been deducted because the infrastructure is owned by the State or a local government increases due to the installation of the infrastructure charges, the Minister of Land, Transport and Maritime Affairs shall deduct or refund the amount equivalent thereto from the infrastructure charges. According to Article 21 of the former Infrastructure Charges Act, Article 15(3) of the former Enforcement Decree of the Infrastructure Charges Act, a person liable to pay the refund or to receive the refund shall verify the details of the payment of the charges necessary for calculating the amount of deduction or the details of the installation of the infrastructure charges, etc., and the former Enforcement Rule of the Infrastructure Charges Act (amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs).

According to the above provisions, it is difficult to view that the payer of charges has the right to claim a specific refund of the charges immediately without taking measures such as the cancellation or withdrawal of the refund decision or the imposition by the head of the Si/Gun/Gu pursuant to the above provisions, solely on the grounds that the grounds for deduction of the charges legally imposed and paid or collected have occurred later. However, the plaintiff has the right to apply for an administrative action necessary for the refund of the charges to the administrative agency due to legal or logical reasons, and the additional dues are the kind of incidental tax added in the meaning of the interest in arrears for the unpaid charges, and there is no reason to regard the procedure for refund differently from the refund

If so, the defendant's refusal to refund the charge (including the application for refund of the charge) on the ground of the deduction that occurred after the charge was imposed legally and paid, the defendant's notification of refusal to refund (the disposition in this case) shall be subject to appeal litigation. Accordingly, the defendant's prior assertion is rejected on different premise.

B. As to the standing to sue

1) The defendant's argument

The determination, imposition, collection, and return of the Defendant’s charges are state affairs that the Defendant handled with the delegation from the Minister of Land, Transport and Maritime Affairs, and the additional charges paid by the Plaintiff are transferred to the State, which is the subject to which the Plaintiff’s charges accrue, so even if the additional charges should

2) Determination

Unless otherwise expressly provided for in other Acts, a litigation seeking revocation shall be instituted against an administrative agency that has taken the administrative disposition (Article 13(1) of the Administrative Litigation Act). In a case where delegation of administrative authority has been made, the delegated agency shall lose its authority to deal with its affairs, and the matters shall be the authority of the delegated agency (see Supreme Court Decision 91Nu11292 delivered on September 22, 1992). As a matter of course, with respect to a disposition conducted under the name of the delegated agency, the delegated agency shall become

In this case, according to Articles 3 and 24 of the former Infrastructure Charges Act, the Minister of Land, Transport and Maritime Affairs may delegate his/her authority to determine, impose, and collect infrastructure charges to the head of a Si/Gun/Gu, as prescribed by Presidential Decree, and accordingly, Article 18(1)7 of the former Enforcement Decree of the Infrastructure Charges Act delegates his/her authority to the head of a Si/Gun/Gu to refund infrastructure charges under Article 17 of the former Enforcement Decree of the Infrastructure Charges Act.

Therefore, as long as the right to refund infrastructure charges is legally delegated to the defendant, the defendant has the standing to be the defendant with respect to the disposition of this case made in the name of the defendant according to the delegation, and the defendant's assertion on this different premise is rejected.

3. Whether the instant disposition is lawful

The court's explanation on this part is consistent with the reasoning of the judgment of the court of first instance, except for the addition of the following parts between the five pages 18 and 19 of the judgment of the court of first instance. Thus, it is acceptable in accordance with Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

“Along with this, if the Defendant returned the additional dues, the Defendant asserts that the person who faithfully performed the obligation under the administrative law, such as paying the charges by the due date, and the person who was subject to sanctions by failing to perform it, would be treated as the same person, and thus would be in violation of the concept of justice or fairness. Even if the disposition in this case is defective, it cannot be viewed as a clear defect since there is room for dispute over interpretation because the legal principles as to whether the additional dues are refunded is not clearly revealed. However, the additional dues are the kind of incidental dues added to the interest on the unpaid portion by the due date rather than the sanction compelling the performance of the obligation, which is added to the interest on the unpaid portion by the due date, and thus, if the amount of the additional dues is reduced due to the decision, cancellation or correction, etc., the additional dues must be naturally cancelled or reduced. Accordingly, it cannot be deemed that the return according to the legal nature as the incidental dues cannot be seen as contrary to the concept of justice or fairness. Meanwhile, the defect in the disposition in this case is clear.

4. Conclusion

Therefore, the judgment of the court of first instance is justifiable, and the defendant's appeal is dismissed. It is so decided as per Disposition.

[Attachment]

The judge’s seat (Presiding Judge) Kim-type crime