[1] In a case where the Korea Rail Network Authority imposes indemnity on the ground that a road is occupied and used without permission on the land which is a state property used as a railroad site in the Gu office A, the case holding that the disposition to impose indemnity by the Korea Rail Network Authority is lawful as a disposition by a person with authority

[2] In a case where a project executor, who is an administrative agency, installs a public facility and occupies and uses it without acquiring the land necessary to install a new public facility by the implementation of an urban planning project, whether the public facility belongs to the State or a local government free of charge pursuant to Article 83(1) of the former Urban Planning Act (negative), and whether the same legal principle applies to a case where the land necessary to install a public facility is a state-owned land

[1] In a case where the Korea Rail Network Authority imposes an indemnity on the ground that a road is occupied and used without permission by installing a road on the land, which is a state property used as a railroad site in the Gu Office A, the case holding that a disposition of imposing indemnity by the Minister of Land, Transport and Maritime Affairs, which is an administrative agency in charge of the said land, is lawful on the ground that the State entrusted the Korea Rail Network Authority with the authority to impose indemnity for the construction and management of railroad facilities, and Article 19(2) and (3) and Article 23(4) of the former Framework Act on Railroad Industry Development (Amended by Act No. 11690, Mar. 23, 2013) and Article 28 subparag. 2 of the former Enforcement Decree of the Framework Act on Railroad Industry Development (Amended by Presidential Decree No. 24443, Mar. 23, 2013); accordingly, the content of a entrustment contract for managing railroad facilities and its related projects between the Minister of Land, Transport and Maritime Affairs and the Korea Rail Network Authority.

[2] Article 83(1) of the former Urban Planning Act (amended by Act No. 4427, Dec. 14, 1991; Article 2 of the Addenda to the National Land Planning and Utilization Act (Act No. 6655, Feb. 4, 2002) provides that public facilities newly installed by an implementer, who is an administrative agency, shall be reverted to the State or a local government free of charge to manage such facilities by the implementation of an urban planning project. The above provision applies only to cases where a project implementer, an administrative agency, acquires land necessary for newly installed public facilities through the implementation of an urban planning project through a contract under the private law or a public law procedure, and installs public facilities and completes the project. This provision does not apply to cases where the State or a local government installs public facilities without the legitimate acquisition of the land necessary for public facilities and occupies and uses them. Such interpretation does not change because the land necessary for the installation of public facilities is the state-owned land.

[1] Article 72(1) of the former State Property Act (Amended by Act No. 10485, Mar. 30, 201); Article 19(2) and (3), and Article 23(4) of the former Framework Act on Railroad Industry Development (Amended by Act No. 11690, Mar. 23, 2013); Article 28 subparag. 2 of the former Enforcement Decree of the Framework Act on Railroad Industry Development (Amended by Presidential Decree No. 24443, Mar. 23, 2013) / [2] Article 83(1) of the former Urban Planning Act (Amended by Act No. 4427, Dec. 14, 191) (see current Article 65(1) of the National Land Planning and Utilization Act)

[2] Supreme Court Decision 98Da55161 Decided August 22, 2000 (Gong2000Ha, 1985) Supreme Court Decision 201Da103069 Decided March 15, 2012

Daegu Metropolitan City Dong-gu (Attorney Visit-at-Law)

Korea Rail Network Authority (Law Firm LLC, Attorneys Song Jong-ho et al., Counsel for the defendant-appellant)

Daegu High Court Decision 2011Nu3044 decided September 7, 2012

The judgment below is reversed, and the case is remanded to the Daegu High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. The judgment of the court below

A. The lower court determined that the Defendant’s disposal of the State Property Act, based on Article 23(4) of the former Framework Act on Railroad Industry Development (amended by Act No. 11690, Mar. 23, 2013; hereinafter the same) and Article 72(1) of the former State Property Act, is unlawful, even if the Defendant’s disposal of the State Property is not an administrative agency’s authority to impose and collect indemnity on the illegal occupant of the State Property, as the head of the central government agency, under Article 6 of the National Finance Act, and the managing agency, who is delegated and entrusted with the affairs of administration and disposal of the State Property pursuant to Article 42(1) of the former State Property Act, is limited to the person who is entrusted with the affairs of administration and disposal of the State Property pursuant to Article 29(1) of the same Act, and the Defendant’s disposal of the State Property Act, including indemnity, is not an administrative agency’s authority to impose on the State Property Act.

B. The court below held that the defendant's disposition of this case was unlawful on the premise that the land of this case owned by the Republic of Korea was state property in Daegu City on November 18, 1974, which was subsequent to the closure of the Daegu City, and the Gyeong-do Governor decided urban planning road (No. 255 of the Gyeong-do notification) and the land located in Daegu City, including the land of this case (No. 255 of the Gyeong-do notification of the Gyeong-do), and the Daegu City completed the urban planning project on the land of this case where the land of this case was a railroad site by implementing the urban planning project and completing the urban planning project on the 8m small-ro 1-dong 5-lane road (new-ro) in width on the land of this case where the land of this case was a new site for the road, which was a public facility, and was gratuitously reverted to the city where the road was to be managed along with the road.

2. Judgment of the Supreme Court

A. First, we cannot accept the lower court’s aforementioned determination on the Defendant’s right to impose indemnity for the following reasons.

(1) Article 72(1) of the former State Property Act provides that an office of administration, etc. may impose and collect indemnity from an unauthorized occupant of State-owned property, and the main sentence of Article 4 of the same Act provides that “Except as otherwise expressly provided for in other Acts, matters concerning the management and disposal of State-owned property shall be governed by this Act.” Meanwhile, Article 19(2) of the former Framework Act on Railroad provides that the Minister of Land, Transport and Maritime Affairs, which is the office of administration of the railroad, may allow the Defendant to act on his/her behalf as prescribed by Presidential Decree. Article 72(3) of the same Act provides that where a defendant acts on his/her behalf as the Minister of Land, Transport and Maritime Affairs pursuant to the provisions of paragraph (2) of the same Article, the railroad shall be deemed the office of administration in the application of this Act and other Acts related to railroads. Article 28 subparag. 2 of the former Enforcement Decree of the Framework Act on Railroad (amended by Presidential Decree No. 2443, Mar. 23, 2013) provides that “the collection of usage fees, etc.”

In addition, Article 23(4) of the former Framework Act on Railroad provides that the Minister of Land, Transport and Maritime Affairs shall transfer the railroad assets, such as facility assets and other assets, from the Administrator of the Korea National Railroad in accordance with a railroad asset management plan, and the management thereof may be entrusted to the Korea National Railroad Facilities Corporation, Railroad Corporation, relevant institutions and organizations, or private corporations prescribed by Presidential Decree, or may allow the Minister of Land, Transport and Maritime Affairs to use or profit from such assets. According to the records, the Minister of Land, Transport and Maritime Affairs and the defendant entered into a contract on entrustment of management (No. 1) with the Minister of Land, Transport and Maritime Affairs for the efficient and systematic management of the railroad assets in accordance with Article 23(4) of the former Framework Act on Railroad, and the fact that the management entrustment contract under

(2) As seen above, the Minister of Land, Transport and Maritime Affairs’s authority to impose indemnity for the instant land, an administrative property, shall be deemed to have been entrusted and transferred to the Defendant by taking into account the following: (a) the content of the instant consignment agreement concluded pursuant to Articles 19(2) and (3) and 23(4) of the former Framework Act on Railroad; (b) the content of the instant consignment agreement concluded pursuant thereto; (c) the State established the Defendant in the form of a juristic person as an enforcement organization to systematically and efficiently carry out the construction and management of railroad facilities and other related projects; and (c) the imposition and collection of indemnity for unauthorized Occupancy, which is necessary for the proper management of railroad assets, in view

Therefore, the defendant's disposition of this case is legitimate as a disposition by the authorized person.

B. Next, the lower court’s aforementioned determination on the ownership of the instant land is difficult to accept for the following reasons.

(1) Article 83(1) of the former Urban Planning Act (amended by Act No. 4427 of Dec. 14, 1991, and Article 2 of the Addenda to the National Land Planning and Utilization Act (Act No. 6655 of Feb. 4, 2002; hereinafter the same) provides that public facilities newly installed by an executor who is an administrative agency through the implementation of an urban planning project shall gratuitously belong to the State or a local government which is to manage the relevant facilities. The above provision applies only to cases where a project executor newly installed public facilities by the implementation of an urban planning project through a contract under a private law or a method under the public law, etc. where the land necessary for newly installed public facilities is acquired by a project executor who is an administrative agency and the construction of public facilities is completed. This provision does not apply to cases where a project executor installs public facilities without lawful acquisition of the land necessary for the installation of public facilities and occupies and uses them by the State or a local government, and such interpretation does not change because the land necessary for the installation of such public facilities is the State-owned land (see, etc.

(2) Even according to the reasoning of the judgment below, the court below did not explain the reason as to whether the Daegu City Mayor, the executor of the above urban planning project, has lawfully acquired the land of this case in accordance with the contract under private law or the public law for the construction of the road of this case, and it cannot be seen that the land of this case was gratuitously reverted to the Daegu City, which is the manager of the road of this case, in light of the above legal principles, unless it is acknowledged that the Daegu City Mayor legally acquired the land of this case.

C. Nevertheless, the lower court did not have the authority to impose indemnity on the Defendant, and determined that the instant land at the time when the Plaintiff occupied and used the instant land did not constitute State-owned property. In so doing, the lower court erred by misapprehending the legal doctrine on the entrustment of administrative authority and by misapprehending the legal doctrine on the reversion of ownership of public facilities as stipulated in Article 83(1) of the former Urban Planning Act, thereby adversely affecting the conclusion of the judgment.

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yang Chang-soo (Presiding Justice)