[1] In a case where the Korea Rail Network Authority imposed indemnity on the Gu office Gap on the ground that it occupies a residential parking lot for exclusive use without permission for use or profit-making of land, the case holding that the disposition to impose indemnity by the Korea Rail Network Authority is lawful as a disposition by the competent

[2] The meaning of “administrative purpose” under Article 26(1)1 of the former Enforcement Decree of the State Property Act or Article 29(1)3 of the former Enforcement Decree of the State Property Act before wholly amended by Presidential Decree No. 21641, Jul. 27, 2009; and

[1] Articles 4 and 72(1) of the former State Property Act (Amended by Act No. 10485, Mar. 30, 201); Articles 19(2) and (3), and 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, 201); Article 24(1) of the former State Property Act (Amended by Act No. 9401, Jan. 30, 201; Presidential Decree No. 2416, Apr. 1, 2017; Presidential Decree No. 2519, Mar. 19, 200; Presidential Decree No. 22011, Mar. 21, 2011>

Busan Metropolitan Government (Law Firm International Law, Attorney Park Jong-hee, Counsel for the plaintiff-appellant)

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

Busan High Court Decision 2012Nu1754 decided November 9, 2012

The part of the judgment below against the defendant is reversed, and that part of the case is remanded to Busan High Court. The plaintiff's appeal is dismissed.

The grounds of appeal are examined.

1. Plaintiff’s ground of appeal

A. As to the first ground for appeal

(1) The plaintiff asserts that the disposition in this case is unlawful since it did not have the authority to dispose of the disposition in this case against the defendant, but in administrative litigation, the existence of the disposition authority in the administrative litigation can not be considered as an ex officio investigation (see Supreme Court en banc Decision 95Nu8669 delivered on June 19, 197). The above ground of appeal is obvious that the plaintiff first raised an argument in the final appeal, and it cannot be a legitimate ground of appeal as to the judgment of the court below.

(2) In addition, this part of the ground for appeal by the Plaintiff cannot be accepted in the following respect.

(A) Article 72(1) of the former State Property Act (amended by Act No. 10485, Mar. 30, 201; hereinafter “former State Property Act”) provides that an office of administration, etc. may impose and collect indemnity from an occupant of State property without permission. The main sentence of Article 4 of the former State Property Act provides that “Except as otherwise provided in other Acts, matters concerning the management and disposal of State property shall be governed by the provisions of this Act.” Meanwhile, Article 19(2) of the former Framework Act on Railroad Industry Development (amended by Act No. 11690, Mar. 23, 2013; hereinafter “former Framework Act on Railroad”) provides that the Minister of Land, Transport and Maritime Affairs, which is a managing authority of railroad, may allow the Defendant to act on behalf of the State as prescribed by Presidential Decree, and Article 72(3) of the former Enforcement Decree of the Framework Act on Railroad Industry Development (amended by Presidential Decree No. 2348, Apr. 23, 2013>

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 the management of general railroad facility assets (hereinafter “management entrustment contract”) with the Minister of Land, Transport and Maritime Affairs for the efficient and systematic management of railroad assets under Article 23(4) of the former Framework Act on Railroad, and the management entrustment contract under Article 3(1)

(B) As seen above, in full view of the contents of Article 19(2) and (3) of the former Framework Act on Railroad, Article 28 subparag. 2 and Article 23(4) of the Enforcement Decree of the former Framework Act on Railroad, and the contents of management consignment agreement concluded accordingly, the State establishes the Defendant in the form of a juristic person as an executing organization to systematically and efficiently carry out the construction and management of railroad facilities and other related businesses, and the imposition and collection of indemnity against unauthorized Possessor is necessary for the proper management of railroad assets, it is reasonable to deem that the authority of the Minister of Land, Transport and Maritime Affairs to impose indemnity against the Defendant, which is administrative property, has been entrusted and transferred to the Defendant. Accordingly, the Defendant’s disposition of this case is lawful as a disposition by a person with authority.

B. Regarding ground of appeal No. 2

For the reasons indicated in its reasoning, the lower court rejected the Plaintiff’s assertion that the Plaintiff has the authority to install a parking lot for exclusive use in each of the instant land in accordance with Article 10(1)3 of the Parking Lot Act and Article 6-2 of the Enforcement Rule of the same Act as a road management authority, and determined that the Minister of Land, Transport and Maritime Affairs or the Defendant may impose indemnity on the Plaintiff for the use of and benefit from each of the instant land, unless the Plaintiff obtained permission from the Minister of Land, Transport

In light of the relevant legal principles and records, the fact-finding and judgment of the court below are justified, and there is no error in the misapprehension of legal principles as to the requirements for imposing indemnity, as alleged in the grounds of appeal

2. As to the Defendant’s ground of appeal

A. As to the first ground for appeal

Article 51(1) of the former State Property Act (wholly amended by Act No. 9401, Jan. 30, 2009; hereinafter “former State Property Act”) and Article 72(1) of the former State Property Act (wholly amended by Act No. 10485, Mar. 30, 201; hereinafter “former State Property Act”) provide that an indemnity equivalent to 120/100 of the usage fees or rent of the State Property shall be collected from an occupant of the State property without permission, as prescribed by Presidential Decree. Article 32(1) of the former State Property Act provides that an amount of indemnity shall be collected every year in accordance with the rate and calculation method prescribed by Presidential Decree when the State Property Act permits the use of administrative property. Article 25(1) of the former State Property Act and Article 32(1) of the Enforcement Decree of the former State Property Act (wholly amended by Presidential Decree No. 21641, Jul. 27, 2009; hereinafter “former Enforcement Decree”).

After Article 24(1) and amendment of the former State Property Act, Article 30(1)1 of the former State Property Act provides that an administrative property may be permitted only to the extent that the administrative property does not interfere with its use or purpose. In a case where an office of administration grants permission for use of the administrative property, it shall not interfere with its use or purpose. Thus, Article 29(1)3 of the Enforcement Decree of the former Enforcement Decree after Article 26(1)1 of the former Enforcement Decree or amendment of Article 26(1)3 of the former Enforcement Decree. Thus, the term “administrative purpose” under Article 29(1)3 of the former Enforcement Decree after Article 26(1)1 of the former Enforcement Decree of the former Enforcement Decree of the State Property Act or Article 26(1)3 of the former Enforcement Decree of the former Enforcement Decree of the State Property Act refers to the administrative purpose of the office that administers the administrative property, and it is reasonable to interpret that it does not refer to the administrative purpose of

According to the records, all of the land of this case is a railroad site that belongs to administrative property, and the plaintiff has installed a residential parking lot for the neighboring residents of each of the land of this case in order to solve the parking shortage.

In light of the legal principles as seen earlier, even if the Plaintiff used each of the instant lands for the administrative purpose of the local government, namely, the removal of a parking shortage, it is difficult to view that the instant land, which is a railroad site, constitutes “administrative purpose” that was originally achieved by providing each of the instant lands.

Nevertheless, the court below determined that since the Plaintiff’s use of each of the lands of this case as above is a case where a local government uses it for its administrative purpose, the rate of usage fees for each of the lands of this case should be 25/1,000. In so doing, the court below erred by misapprehending the legal principles on the calculation of usage fees, which serve as the basis for calculating indemnity, thereby adversely affecting

B. Regarding ground of appeal No. 2

(1) According to the reasoning of the lower judgment, the lower court determined that the Defendant’s calculation of indemnity for a portion of each of the instant land is unlawful on the ground that the Defendant’s calculation of indemnity for a portion of the instant land is based on the rate of 150/1,00 of the usage fees, on the ground that it is not necessary to increase the usage fees or increase the usage fees in order to balance with the publicly assessed individual land price of the instant land, even if the land is subject to 0.33 in calculating the officially assessed individual land price of each of the instant land, even if the land is subject to 0.33 in the calculation of the officially assessed individual land price of each of the instant land, it is not necessary to increase the usage fees or increase the usage fees in order to balance with the publicly assessed individual land price of the neighboring land used as the site.

(2) However, we cannot accept the above judgment of the court below.

Article 26 (1) 5 of the former Enforcement Decree of the Act provides that the rate of usage fees shall be at least 50/1,000 in cases where administrative property is used for other purposes, and the main sentence of Article 29 (1) of the Enforcement Decree shall also be at least 50/1,00 in principle, after the amendment. According to these provisions, the office of administration in charge of administrative property shall have the discretion to choose the rate of usage fees, which serves as the basis for calculating indemnity against unauthorized occupant within a range of at least 50/1,00,000. Thus, if the office of administration has selected the rate of usage fees within a range of at least 50/1,00, it shall be lawful in accordance with the former State Property Act

Meanwhile, Article 26 (2) 1 of the former Enforcement Decree and Article 29 (2) 1 of the Enforcement Decree after amendment shall be calculated as the publicly announced individual land price of the relevant land under Article 11 of the Public Notice of Values and Appraisal of Real Estate Act. If there is no publicly announced individual land price of the relevant land, the usage fee of each of the relevant land shall be calculated based on the officially announced land price under Article 9 of the same Act. According to the records, ① internal property management regulations have been prepared and calculated, ② Article 31 (3) of the former Property Management Regulations (amended by February 27, 2009; hereinafter “former Property Management Regulations”) shall be applied to the Plaintiff at the time of request for ratification of, or profit from, State property prices; ② Article 26 (2) 1 of the Enforcement Decree of the former Enforcement Decree shall be calculated as 00 times the usage fee of each of the relevant land for the pertinent year; and ③ Article 20 (3) of the former Land Management Regulations (amended by Presidential Decree No. 213000, Sep. 13, 20, 20001) shall be applied to the above publicly announced individual land price.

In light of the above facts in light of the legal principles as seen earlier, the fee rate set by the Defendant does not go beyond the scope of the fee rate set by the former State Property Act and its Enforcement Decree, and it is difficult to view that the Defendant’s management provision that adjusts the fee rate within three times according to the application of the ratification rate of public land to collect the fee unfairly excessive fee. Therefore, it is difficult to deem that the Defendant abused or abused discretion in applying the above fee rate.

Nevertheless, the lower court determined that the Defendant’s application of the fee rate as above was unlawful. In so doing, the lower court erred by misapprehending the legal doctrine on the calculation of the fee rate, which serves as the basis for calculating indemnity, and on deviation and abuse of discretion, thereby adversely affecting the conclusion of the judgment.

3. Conclusion

Therefore, without examining the remaining grounds of appeal by the defendant, the part against the defendant among the judgment below is reversed, and this part of the case is remanded to the court below for a new trial and determination. The plaintiff's appeal is dismissed. It is so decided as per Disposition by the assent of all participating

Justices Kim Yong-deok (Presiding Justice)