2017Guhap89926 Action Demanding the revocation of a disposition revoking permission for use of state property

A Stock Company

Law Firm LLC (LLC)

Attorney Kim Jong-soo

Bateraeculum

Attorney Lee Dong-young, Counsel for the defendant-appellant

5, 2018 5,25

June 22, 2018

1. The plaintiff's claim is dismissed.

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

On December 13, 2017, the Defendant’s decision to revoke permission to use State property granted to the Plaintiff is revoked.

1. Details of the disposition;

A. The plaintiff was established for the purpose of food beverage sales business on January 14, 2004, and the defendant is the management authority of the theater B (hereinafter referred to as "the theater of this case").

B. On December 16, 2016, the Plaintiff filed an application with the Defendant for permission to use part of the instant theater as state property for use as Lestop. On May 18, 2017, the Defendant revoked the permission to use part of the instant theater (land, 763.56m2, building, 763.56m2) from January 1, 2017 to December 31, 2017 (hereinafter “the instant permit to use”) with the permission to use part of the instant theater (hereinafter “the instant permit to use”). The Defendant revoked the permission to use on December 13, 2017 on the ground that the term “the instant permit to use” was unpaid for the use fee of Lestop. 3, 2017 and revoked the permission to use as state property (hereinafter “the instant notice of revocation on December 15, 2017”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 2 and 8, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Although the Plaintiff failed to pay the usage fee for the year 2017, the instant disposition was unlawful in the following respect:

1) The Plaintiff donated a part of the instant Lestop and donated a building or site, and upon such donation, around 2002, the period of permission for use of the instant Lestop was 30 years with the permission for use of the instant Lestop around 202.

2) When the Plaintiff was unable to operate the instant Lestop in around one year due to the Defendant’s cause attributable to the Defendant around 2013, the Plaintiff and the Defendant agreed on February 5, 2014 to extend the period of use corresponding to the period during which the Lestop was unable to operate the Lestop as above. Thus, even if the Plaintiff failed to pay the usage fee for the year 2017, the Defendant should additionally allow the use of the instant Lestop in accordance with the said agreement.

3) The Defendant permitted a competitor to use part of the theater of this case, and allowed the general public to use a cafeteria, and the Plaintiff’s mistake, such as arbitrarily removing the Plaintiff’s signboard mazers, etc., which led to the increase in the Plaintiff’s management difficulties, thereby failing to pay the user fee for the year 2017.

B. Relevant statutes

Attached Form 1 shall be as listed in attached Table 1.

(c) Fact of recognition;

1) Permission for the donation and use of the instant Lestop, etc.

A) On December 14, 2000, C donated a part of the instant Lestop, a building or site to the State, and obtained permission for use of the instant Lestop business from around 2001.

B) On January 5, 2002, the Defendant granted the permission to use the instant Lestop, and the notice of the permission to use and profit from the instant Lestop was stated as of January 5, 2002 as of January 5, 2002, and Article 2 of the condition of permission to use and profit from state property attached to the above notice is stated as of January 200, January 1, 2002 to December 31, 2002. In addition, according to Article 3 of the above condition of permission, the fee for use and profit from the permission to use is KRW 20,137,790.

C) On January 21, 2004, C continued to operate the instant Lestop, and transferred all of the instant Lestop to the Plaintiff on January 21, 2004, and the Plaintiff continued to operate the instant Lestop from that time until the time of the instant disposition.

D) According to the “the details of exemption from usage fees of the donated building attached to the instant permit for use”, the Defendant exempted C or the Plaintiff from usage fees corresponding to the portion of the donated building every year when granting permission for use of the instant Lestop. However, the specific contents are as shown in attached Table 2.

2) From May 2013, the Defendant commenced repair works for the instant theater from around May 2013. The occurrence of water pipe heat accidents, which occurred during the construction, and the period of construction has been extended, resulting in the Plaintiff’s failure to operate the instant tea for approximately one year, as the period of construction has been extended.

B) On February 5, 2014, the Plaintiff and the Defendant agreed on the above temporary closure damage, and Article 5 of the Agreement provides that “The Plaintiff shall be exempted from usage fees for the temporary closure of the Plaintiff, and the period of permission for use of donated property shall be extended.”

3) Matters, etc. concerning the operation of the Lestop in this case

A) The instant Lestop is selling various kinds of Pakistan and COSsa as Lestopists in the Italy.

B) A restaurant in the instant theater opened in around July 2013, 2013. A restaurant in the form of food was sold at a price between KRW 3,300 and KRW 18,000, and is operated in the form of directly bringing food to a restaurant user and returning food. On the other hand, a restaurant can be operated in the instant theater’s staff as well as outside humanitarian-oriented restaurant. In addition, in the instant theater, a food truck is operated in the instant theater that sells Dog and drinks.

C) On April 6, 2017, the Defendant had difficulty in managing the theater of this case, and demanded the Plaintiff to remove the instant Lestop standing signboards installed in the chemical team.

4) Unpaid usage fees, etc. of the Lestop of this case

A) By June 30, 2017, the Plaintiff paid the Defendant a fee of KRW 63,277,198 according to the instant permission for use (excluding usage fees for the portion of donation). On July 4, 2017, the Plaintiff requested the Defendant to pay the said fee in installments twice on the grounds of business difficulties, etc.

Accordingly, even if the Defendant ordered the payment of KRW 22,225,060 by July 31, 2017, and KRW 42,177,430 by August 31, 2017, the Plaintiff did not pay all the above usage fees.

B) From August 28, 2017 to October 19, 2017, the Defendant did not pay the Plaintiff the fee, even though the Defendant urged the Plaintiff to pay the fee five times from August 28, 2017.

C) On February 5, 2018, the Plaintiff paid KRW 22,723,130, which is a part of the above usage fees. [Grounds for recognition] The Plaintiff did not dispute, entry in Gap’s 1 through 9, Eul’s 1 through 3, and Eul’s 6 (including branch numbers; hereinafter the same shall apply), and the purport of the whole pleadings.

D. Determination

In light of the following circumstances, the above facts and evidence No. 2, which can be known by adding the whole purport of the pleadings, the instant disposition was lawfully conducted based on the relevant provisions, and it cannot be deemed that it exceeded or abused discretionary power. Thus, the Plaintiff’s assertion is without merit.

1) The Plaintiff asserted that, around 2002, the period of permission for use was 30 years on condition that the instant Lestop was donated, the Plaintiff obtained the permission for use of the instant Lestop.

① However, Article 2 of the condition of permission for use and profit-making permit attached to the notice of permission for use and profit-making permit of January 5, 2002 sets the use period of one year, and the Defendant appears to have set the exemption amount of the total user fee and contribution portion every year after obtaining permission for use of the instant Lestoc in the unit of one year thereafter. ② “30 years listed on the date of execution of the notice of permission for use and profit-making” appears to be merely indicating the preservation period of the above document in accordance with the Public Records Management Act, etc. ③ Article 27(1) proviso of the former State Property Act (amended by Act No. 7325 of December 31, 2004) provides that the use permission period of the instant Lestoc shall not be deemed to be the use permission period of this case within “within the period of the total amount of the user fees paid for the value of the property donated with donation,” and in light of the purport that the use permission period of this case shall not exceed the full amount of the donated property.

2) In addition, on February 5, 2014, the Plaintiff agreed to extend the use period corresponding to the period during which the instant Lestop was not operated due to the instant theater construction, etc., and accordingly, the Plaintiff asserts that the instant Lestop should be additionally used for one year. However, the Defendant made a permit to use the instant Lestop in the year 2015, and the Plaintiff is deemed to have used the instant Lestop for the corresponding period during which the said suspension period had already been granted. (Additionally, the Defendant, as described in the attached Table 2, did not receive the use fee exemption per se from the portion of donations (from May 1, 2013 to April 30, 2014) for the period corresponding to the said suspension period, as described in the attached Table 2).

3) Upon obtaining the permission for use of the instant Lestop, the Plaintiff paid 63,277,198 usage fees for the remaining parts of the instant Lestop, except the donation portion, and the conditions attached to the notice of permission for use under Article 36(1)4 of the State Properties Act and Article 11 subparag. 5 of the conditions attached to the notice of permission for use of the instant Lestopp, which can be revoked if the Plaintiff did not pay usage fees by the due date. Thus, as long as the Plaintiff did not pay the above usage fees, the Defendant may, regardless of the period of permission for use of the instant Lestop, revoke

4) In addition, in light of the following circumstances, it is difficult to view the instant disposition as a disposition that deviates from and abused its discretionary power.

① The revocation of the instant permission to use the instant use after the remaining 16 days of the use permission period was 16 days, and thus, the Plaintiff’s disadvantage is not significant.

② The Defendant, upon the Plaintiff’s request, required to pay the user fee under the instant permission for use in installments, and requested more than five times to pay the user fee, but did not pay the user fee up to the time of the instant disposition, and paid only KRW 22,723,130 until now.

③ For about 17 years as shown in the table 2, the use fee for the portion of the donation was exempted in the course of operating the Lestop of this case with the permission for use of the Lestop of this case for about 17 years. The total amount of the usage fee exempted from the above-mentioned exemption from the value of the portion donated among the Lestop of this case shall not exceed 11,939,140 won. In particular, the amount of the usage fee due to the permission for use of this case exceeds the above remaining amount.

④ There is no provision in the terms and conditions of permission related to the permission of the instant theater that the Plaintiff would not operate any other restaurant business in the instant theater. In light of the operation and sale methods of other restaurants located in the instant theater, etc., it is difficult to deem that the Plaintiff’s business became difficult due to this. There is no other circumstance to deem that the Defendant removed the Plaintiff’s standing signboard as part of the instant theater’s management measures.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judgment of the presiding judge;

Judges Slocks

Judges Kang Jae-sung