2012Guhap4687 Disposition of Non-sale of State Property

A

The Ministry for Food, Agriculture, Forestry and Fisheries

March 27, 2013

April 3, 2013

1. The instant lawsuit shall be dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

On October 9, 2012, the Defendant’s provisional disposition against the Plaintiff for the purchase of State property is revoked.

1. Details of the disposition;

A. On September 22, 2000, the Plaintiff occupied 497 square meters (hereinafter “the instant land”), which was a state property that was registered as a state property in the future of the Republic of Korea, without permission, and was engaged in the first hand hand-on fishery in the coast of Taean-gun, Taean-gun, Thai-gun (hereinafter “the instant land”).

B. On September 12, 2012, the Plaintiff filed an application for the purchase of State-owned property with respect to the instant land with the Defendant, who is the managing authority of the instant land. On October 9, 2012, the Defendant: (a) on the said application by the Plaintiff, the possibility of selling the instant land cannot be entirely excluded from the possibility of maintaining the said land in the middle and long-term ocean-going port with the fishery harbor area (a port for interest; and (b) on the ground that the sale of the instant land would be likely to hinder the management of fishery harbors; and (c) notified the Plaintiff of the sale price (hereinafter referred to as the “instant notice of the sale price”).

[Evidence] Facts without dispute, Gap evidence 10, Eul evidence 10, Eul evidence 1, and the purport of the whole pleadings

The defendant asserts that the sale of state-owned property constitutes a juristic act by the State as the subject of private economy, and thus the sale refusal notification of this case does not constitute a disposition subject to administrative litigation, and that the plaintiff's lawsuit seeking the revocation of the above notification is unlawful.

The term "administrative disposition" means the exercise or refusal of public authority as an enforcement of law with regard to a specific fact by an administrative agency, and other corresponding administrative actions. In principle, the state property management authority's act of selling state property is a contract under private law with the other party as a private economic entity, and it cannot be deemed an administrative disposition unilaterally conducted regardless of the other party's intent (see Supreme Court Decision 70Du59, Feb. 22, 1972). The administrative agency's refusal to sell state property also constitutes a judicial act conducted as a private economic entity, barring any special circumstance, and it cannot be deemed an administrative disposition (see Supreme Court Decision 83Nu621, Apr. 10, 1984). Thus, the defendant's refusal to sell state property of this case is merely an administrative act that cannot be subject to appeal as a matter of principle, and it cannot be deemed that there exists any legal ground or special circumstance to deem it as an administrative disposition. Thus, the plaintiff's lawsuit of this case is unlawful.

3. Conclusion

Therefore, since the lawsuit of this case is unlawful, it is decided to dismiss it. It is so decided as per Disposition.

The presiding judge, the Giman Judge

A judge is unable to sign or affix a seal on the leave of absence;

Judge Kim Jae-han

Relevant statutes

m. State Property Act

Article 48 (Sale)

General property may be sold in cases other than those falling under any of the following subparagraphs:

1. Administrative property under Article 8 (4) in order to be used for administrative purposes by the head of a central government agency;

In the case of applying for approval of use or administrative exchange;

2. Where the disposition is restricted in accordance with the National Land Planning and Utilization Act and other Acts.

3. Objects subject to restrictions on disposal determined by the disposition standards under Article 9 (4) 3, taking into account future administrative objectives; and

in the case of

4. Completion of management by the State, as prescribed by Presidential Decree, in addition to cases falling under subparagraphs 1 through 3.

Where the office of general administration or the head of a central government agency designates

(2) The head of a central government agency shall sell general property prescribed by Presidential Decree among general property belonging to its special accounts or funds.

In cases of intending to consult with the Office of General Administration.