Whether an additional recognition of a holder of important intangible cultural heritage falls under the discretion of the Administrator of the Cultural Heritage Administration (affirmative), and whether an individual has the right to file an application (negative)

According to Article 24(1), (2), (3), and (5) of the former Cultural Heritage Protection Act (amended by Act No. 12352, Jan. 28, 2014; hereinafter the same) concerning the additional recognition of holders of important intangible cultural heritage; Article 12(1)1, (2), and (3) of the former Enforcement Decree of the Cultural Heritage Protection Act (amended by Presidential Decree No. 25873, Dec. 23, 2014; hereinafter the same), whether to grant the additional recognition of holders of important intangible cultural heritage belongs to the discretion of the Administrator of the Cultural Heritage Administration; and there is no separate provision that a specific individual may file an application for the additional recognition of holders of important intangible cultural heritage; therefore, there is no right to file an application with an individual under the relevant law.

In addition, the purport that the former Cultural Heritage Protection Act and the former Enforcement Decree of the Cultural Heritage Protection Act do not grant an individual right to file an application is that the Administrator of the Cultural Heritage Administration determines the necessity or validity of the additional recognition from the perspective of public interest, such as the preservation and transmission of important intangible cultural heritage, rather than seeking an application by an individual. In addition, considering the legislative purpose of the Cultural Heritage Protection Act to promote the cultural improvement of the people and the details of the regulations on additional recognition procedures for holders of important intangible cultural heritage, it shall not be construed that the provisions of statutes on additional recognition also protect the interests of individuals recognized as holders of important intangible cultural heritage, in addition to the public interest of the preservation of important intangible cultural heritage.

Article 24(1), (2), (3), and (5) (current deletion) of the former Cultural Heritage Protection Act (Amended by Act No. 12352, Jan. 28, 2014); Article 12(1)1, (2) (see current Article 12(3)), and (3) (see current Article 12(4)) of the former Enforcement Decree of the Cultural Heritage Protection Act (Amended by Presidential Decree No. 25873, Dec. 23, 2014);

Plaintiff (Law Firm Hancheon, Attorneys Go Ji-hee et al., Counsel for the plaintiff-appellant)

The Administrator of the Cultural Heritage Administration (Attorney Jeong-ju, Counsel for defendant-appellant)

Seoul High Court Decision 2012Nu34671 decided August 23, 2013

The judgment below is reversed, and the plaintiff's appeal is dismissed. The total costs of the lawsuit after the appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. If an administrative agency’s rejection of a citizen’s petition constitutes an administrative disposition that is subject to an appeal litigation, the administrative agency’s right to request the action must be the citizen. If an administrative agency does not accept a citizen’s petition without such right to request, the rejection does not affect the applicant’s right or legal interest, and it cannot be deemed an administrative disposition that is subject to an appeal litigation (see Supreme Court Decision 2004Du11626, Apr. 15, 2005, etc.).

2. According to the reasoning of the lower judgment, on January 28, 201, the Defendant: (a) formulated an “inspection plan for designation of important intangible cultural heritage in 201 (recognition, etc.)” on January 28, 201, and conducted an investigation by means of personal skill evaluation and interview investigation after submitting the relevant data, such as curriculum, major transmission activities, etc. against five professionals for successor training in Gyeonggi-gu, including the Plaintiff (hereinafter “instant investigation”); and (b) the intangible cultural heritage subcommittee of the Cultural Heritage Committee, upon receipt of a request from the Defendant for an examination of the validity of the additional recognition of holders of Gyeonggi-gu, requested by the Defendant on January 27, 2012, the Cultural Heritage Committee, upon receipt of a request for an examination of the validity of the additional recognition of holders of Gyeonggi-gu Residents, shall not recognize the additional recognition of holders as there is no risk of transmission due to two holders of the said important intangible cultural heritage; and (c) the Defendant, on February 14, 2012, notified the Plaintiff of the additional notification of the result of the instant notification.

3. However, Article 24 of the former Enforcement Decree of the Cultural Heritage Protection Act (amended by Act No. 12352, Jan. 28, 2014; hereinafter the same) provides for “The designation of important intangible cultural heritage among those as important cultural heritage upon deliberation by the Cultural Heritage Committee (Paragraph 1); where an intangible cultural heritage is designated, a holder of such important intangible cultural heritage shall be recognized (Paragraph 2); and where an owner of such important intangible cultural heritage, other than those already recognized, may be additionally recognized (Paragraph 3).” Article 12 of the former Enforcement Decree of the Cultural Heritage Protection Act (amended by Presidential Decree No. 25873, Dec. 23, 2014; hereinafter the same) provides for “The designation of a holder of important intangible cultural heritage or arts as an owner of important intangible cultural heritage” (Article 3(1)1 of the Cultural Heritage Protection Act provides for “the designation of a holder of important intangible cultural heritage or an owner of important intangible cultural heritage by the Cultural Heritage Committee” (Article 3(1)1).

According to the provisions of the Cultural Heritage Protection Ordinance on the additional recognition of holders of important intangible cultural heritage, the issue of additional recognition of holders of important intangible cultural heritage belongs to the discretion of the defendant, and there is no separate provision that a specific individual may apply to him/her as a holder. Therefore, it cannot be said that an individual has the right to file such application under the laws and regulations.

In addition, the purport of the former Cultural Heritage Protection Act and its Enforcement Decree that did not grant the right to file an application with an individual is that the defendant objectively determines the necessity or validity of the additional recognition from the perspective of the public interest of preserving and transmitting important intangible cultural heritage, rather than seeking an application by an individual. In addition, considering the legislative purpose of the Cultural Heritage Protection Act to promote the cultural improvement of the people and the details of the regulations on the additional recognition procedures for holders of important intangible cultural heritage in addition to the public interest of preserving important intangible cultural heritage, considering the legislative purpose of the Cultural Heritage Protection Act to contribute to the development of human culture and the contents of the regulations on the additional recognition procedures for holders of important intangible cultural heritage, the provisions on additional recognition

Examining the aforementioned circumstances in light of the legal principles as seen earlier, the mere fact that the Plaintiff was investigated as an assistant instructor for successor training does not necessarily mean that the Plaintiff has the right to file an application under the laws and regulations on the additional recognition of holders of important intangible cultural heritage, and even if the Defendant did not additionally recognize the Plaintiff as a Gyeonggi-gu Residents, it does not affect the Plaintiff’s right or legal interest. Therefore, the instant notification does not constitute a rejection disposition subject to appeal.

4. Nevertheless, on the erroneous premise that the Plaintiff has a right to demand a legitimate response without a deviation from or abuse of discretionary power with respect to the additional recognition of a holder of important intangible cultural heritage, the court below held that the notice of this case, which notified that the additional recognition of a holder of important intangible cultural heritage was rejected by an appeal litigation, constitutes a rejection disposition subject to appeal litigation, and held that the judgment of the court of first instance dismissed the lawsuit of this case on the ground that it was illegal.

Therefore, the judgment of the court below is erroneous in the misapprehension of legal principles as to the rejection disposition subject to appeal litigation, which affected the conclusion of the judgment. The ground of appeal assigning this error

5. Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment of the court below is reversed, and this case is sufficient for the Supreme Court to directly render a judgment. The lawsuit of this case is dismissed as unlawful. Since the judgment of the court of first instance is justifiable, the plaintiff's appeal is dismissed as it is without merit, and the total costs of the lawsuit after the appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices

Justices Kim Shin (Presiding Justice)