[1] Requirements and criteria for determining a defective administrative disposition as a matter of course

[2] The case holding that where an administrative agency erred in interpreting the relevant Acts and subordinate statutes and deemed a landowner to be subject to the imposition of development charges and imposed development charges on the lessee of the land, the defect cannot be objectively apparent and objectively, and thus the administrative agency is not subject to the imposition of development charges

[1] Even if a defect in an administrative disposition is serious, if it is not objectively clear in its appearance, the disposition cannot be deemed null and void. Thus, in a case where an administrative agency has taken an administrative disposition by applying the provisions of a law to certain legal relations or factual relations, the legal principles clearly stated that the provisions of the law cannot be applied to such legal relations or factual relations, and thus, if an administrative agency has taken the disposition by applying the above provisions despite the absence of room for dispute over the interpretation, it shall be deemed that the defect is significant and obvious. However, if there is room for dispute over the interpretation because the legal principles that the provisions of the law are not applicable to such legal relations or factual relations have not been clearly revealed, it shall be deemed that the administrative agency erred and mispers about the facts of the disposition, and thus, if an administrative disposition was taken against a person without any legal relations or factual relations which are the object of the administrative disposition, it shall be deemed that the defect is obvious and obvious, but if there is any objective circumstance that misleads that the legal relations or factual relations, which are not the object of the administrative disposition, it shall not be clear even if it is obvious.

[2] The case holding that where an administrative agency erred in interpreting the relevant statutes and deemed a landowner’s construction project to be subject to development charges and imposed development charges on the lessee of land, the defect cannot be objectively apparent from external appearance, and thus, is not null and void.

[1] Articles 1 and 19 of the Administrative Litigation Act / [2] Articles 3(1), 5, and 6 of the former Restitution of Development Gains Act (amended by Act No. 4563 of Jun. 11, 1993)

[1] Supreme Court Decision 88Nu12110 decided July 11, 1989 (Gong1989, 596), Supreme Court en banc Decision 90Nu10862 decided Nov. 27, 1990 (Gong1991, 207), Supreme Court Decision 94Nu4615 decided Jul. 11, 1995 (Gong195Ha, 2633) / [2] Supreme Court Decision 93Nu2940 decided Jul. 16, 1993 (Gong193Ha, 2314), Supreme Court Decision 90Nu13939 decided Aug. 14, 1993 (Gong1993, 2314).

Kim Young-young

Ulsan-si (Attorney Ha Man-young, Counsel for defendant-appellant)

Busan High Court Decision 95Na3350 delivered on September 14, 1995

The part of the judgment below against the defendant is reversed and that part of the case is remanded to Busan High Court.

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, the court below acknowledged that the plaintiff leased the land of this case from Kim Jong-he for a ten-year period, and conducted construction work on April 11, 1990 after obtaining permission to change the form and quality of land for the construction of a golf range in the name of the plaintiff on July 20 of the same year. Ulsan City Mayor shall be deemed to be subject to development charges prescribed in the former Restitution of Development Gains Act (amended by Act No. 4563 of Jun. 11, 1993; hereinafter referred to as the "Act") and imposed development charges on the plaintiff on October 19 of the same year (hereinafter referred to as the "disposition of this case"). Since the plaintiff's development charges imposed on the plaintiff on the land of this case on the non-party Kim Jong-he for a ten-year period, the plaintiff's construction project merely belongs to the landowner, and the project operator shall not be subject to construction charges prescribed in Article 6 of the Act, and the plaintiff's construction charges shall not be subject to construction charges nor be subject to development charges prescribed in the Presidential Decree No. 15. 9. 9.

2. However, even if the defect in an administrative disposition is serious, if it is not objectively clear in its appearance, the disposition cannot be deemed null and void as a matter of course. In a case where an administrative agency takes an administrative disposition by applying a provision of a law to certain legal relations or factual relations, the legal principles clearly stated that the provision of the law cannot be applied to such legal relations or factual relations, and thus, if an administrative agency takes the disposition by applying the above provision despite the absence of a dispute over the interpretation, it shall be deemed that the defect is significant and obvious. However, if there is room for dispute over the interpretation because the legal principles that the provision of the law is not applicable to such legal relations or factual relations have not been clearly revealed, it is merely erroneous that the fact of the disposition is erroneous and thus, it cannot be said that the defect is evident. In addition, if an administrative disposition was taken against a person who does not have any legal relations or factual relations subject to the administrative disposition, it shall be deemed that the defect is significant and obvious, but it is evident that there is any objective circumstance that it becomes the object of the administrative disposition, and that it becomes a material defect.

However, Article 5 (1) 9 of the Act lists "a golf course construction business" as a business subject to development charges in subparagraph 11, "a business similar to those under subparagraphs 1 through 10 of the Enforcement Decree", and defines "a business similar to those under subparagraphs 1 through 11 of the Enforcement Decree" as "a business subject to development charges." Although Article 4 and subparagraph 11 of the attached Table 1 do not expressly provide for "a business subject to development charges, the construction of a golf range is likely to be erroneously interpreted as a business corresponding to the change of the form and quality of the golf range under Article 5 (1) 9 of the Act, which includes a business subject to development charges in subparagraph 9 of the same Article, and Article 2 subparagraph 4 of the Act provides that "a person liable to pay development charges shall be imposed and collected by the State under the Act among the development gains belonging to a project operator," and Article 6 (1) of the Enforcement Decree provides that "a person subject to the imposition of development charges in this case's land is not subject to the imposition of development charges by the plaintiff.

In addition, as stated in the judgment of the court below, if the plaintiff implemented a construction project under his own name after obtaining permission for changing the form and quality of land and received a completion inspection under his name, there are objective circumstances that could mislead the plaintiff to believe that the plaintiff implemented the development project, and whether the development gains from the project belong to the land owner who is not the plaintiff can only be identified by the accurate investigation of the facts. Therefore, it cannot be said that the mistake of

Therefore, even though the above defects existing in the disposition of this case cannot be deemed to be null and void as a matter of course, the judgment of the court below which partially accepted the plaintiff's claim of this case on the premise that the disposition of this case is null and void as a matter of course, is erroneous in the misapprehension of legal principles as to the invalidation of the disposition of this case, which affected the conclusion of the judgment.

3. Therefore, the part of the judgment below against the defendant is reversed, and that part of the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Song Jin-hun (Presiding Justice)