[1] Whether the head of a local government should impose an indemnity on a person who uses, benefits from, or occupies public property or goods without permission for use or profit-making or loan contract (affirmative)

[2] In a case where the Seoul Special Metropolitan City Mayor requested reconsideration of the Seoul Special Metropolitan City Ordinance on Management of Land Secured for the Development of Urban Development, which provides that indemnity may be imposed at the time of sale of land allotted by the authorities in recompense for development outlay for collective settlement, but the Seoul Special Metropolitan City Council re-resolutions the Ordinance, the case holding that the above Ordinance violates the Public Property and Commodity Management Act and its Enforcement Decree on the ground that, under the above Ordinance, in a case where the land allotted for development recompense for development outlay is used or profit-making without permission for use or profit-making or loan contract for more than five years

[1] Article 81(1) and (2) of the Public Property and Commodity Management Act; Article 81(1) of the Enforcement Decree of the Public Property and Commodity Management Act / [2] Article 22 of the Local Autonomy Act; Article 81(1) and (2) of the Public Property and Commodity Management Act; Article 81(1) of the Enforcement Decree of the Public Property and Commodity Management Act

[Judgment of the court below]

[Defendant-Appellee] Plaintiff 1 and 2 others

December 11, 2014

The re-resolution of the Seoul Special Metropolitan City Ordinance on Management of Land Secured for Urban Development Development, which was made by the defendant on July 9, 2012, has no effect. The litigation costs shall be borne by the defendant.

The same shall apply to the order.

1. Re-resolution of the Ordinance of this case

The following facts may be acknowledged according to the overall purport of Gap evidence 1-1, 2, 3, 2-1, 2, 3-2, 3-1, 4-1, 2, 3, 5-1, 5-2, and 2-2.

A. On May 2, 2012, the Defendant held a temporary session of the Seoul Special Metropolitan Council on May 2, 2012, and resolved on the Seoul Special Metropolitan City Ordinance on the Management of Land Secured for the Development of Urban Development (hereinafter “Ordinance of the Ministry of Land, Infrastructure and Transport”) to partially amend the Ordinance on the Management of Land Secured for Development Development (hereinafter “Ordinance of the Ministry of Land, Infrastructure

B. Article 19(2) of the Seoul Special Metropolitan City Ordinance on Management of Land Secured for the Development of Urban Development (hereinafter “Ordinance on Management of Land Secured for the Development of Land Secured for the Development of Land; hereinafter the same shall apply) provides that “compensation shall be imposed and collected for each fiscal year, but may be imposed by the end of February of the following year: Provided, That the Ordinance of this case newly establishes Article 19(3) (hereinafter “Ordinance of this case”) and newly establishes Article 16(2) of the Ordinance on Management of Land Secured for the Development of Land Secured for the Development of Urban Development (hereinafter “Ordinance”). The Ordinance of this case stipulates that “The compensation may be imposed at the time of sale of land secured for the development of land secured for the collective settlement

C. According to the instant ordinances on May 22, 2012, the Plaintiff: (a) concluded a normal permit for use and profit; and (b) concluded a loan agreement; and (c) demanded reconsideration to the Defendant on the grounds that the instant ordinances violate the procedures for collecting indemnity under Article 81 of the Enforcement Decree of the Public Property and Commodity Management Act (hereinafter “Enforcement Decree”); (b) however, the Defendant re-resolutioned the instant ordinances on July 9, 2012, thereby establishing the instant ordinances.

2. Whether the ordinances of this case violate the provisions of this case

The main sentence of Article 22 of the Local Autonomy Act provides that "Local governments may enact municipal ordinances concerning their affairs within the scope of statutes." Thus, if municipal ordinances enacted by local governments violate statutes, they shall not be effective, and whether municipal ordinances violate statutes or ordinances shall be determined individually and specifically depending on whether there is inconsistency and promotion between the two compared with the purport of each provision of statutes and municipal ordinances, the purpose, contents, and effects of the regulations, etc. (see Supreme Court Decision 2008Do32, Oct. 15, 2009).

Article 81(1) of the Public Property and Commodity Management Act (hereinafter “Act”) provides that “The head of a local government shall collect an amount equivalent to 120/100 of the usage fees or rent of public property or goods (hereinafter “compensation”) from a person who uses, benefits from, or possesses public property or goods without permission for use or profit-making or loan contract (including a person who continues to use, benefit from, or possesses public property or goods without permission for use or profit-making or loan contract after the expiration of the period of permission for use or profit-making or loan contract) as prescribed by Presidential Decree.” Article 81(2) of the Enforcement Decree provides that “Compensation may be paid in installments as prescribed by Presidential Decree.” According to delegation, Article 81(1) of the Enforcement Decree provides that “The compensation under Article 81 of the Act may be paid in installments for the period during which the property is occupied without permission or without permission for use or profit-making without permission may be paid in installments by up to 120/100 of the total amount of usage fees or rent calculated under Articles 14 and 310 per fiscal year.”

In full view of the contents and structure of the relevant provisions and the requirements for collecting indemnity as well as the provisions of Article 81(1) of the Act, it is reasonable to deem that the collection of indemnity is a binding act that does not permit the disposal agency’s discretion (see Supreme Court Decision 98Du7602, Sept. 22, 1998). In full view of the following, the head of a local government should impose and collect indemnity from a person who uses, benefits from, or occupies public property or goods without permission for use or profit-making or a loan agreement, for each fiscal year. However, if it is possible to impose indemnity upon a person who uses or occupies public property or goods without a loan agreement, the head of a local government may impose and collect indemnity from the person who uses or occupies public property or goods without permission for use or profit-making or a loan agreement for the development recompense land for settlement in a group for more than five years.

Therefore, the ordinances of this case are in violation of the Act and the Enforcement Decree, and the re-resolution of the Ordinance of this case should be denied in its entirety. Therefore, the plaintiff's claim of this case seeking the exclusion of the effect of the re-resolution is justified.

3. Conclusion

Therefore, the Plaintiff’s claim of this case is accepted, and the costs of lawsuit are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Poe-young (Presiding Justice)