Plaintiff (Attorney Kim Young-soo, Counsel for the plaintiff-appellant)

Seoul Special Metropolitan City Mayor (Law Firm Min & Lee, Attorneys Lee Du-soo, Counsel for defendant-appellant)

April 19, 2018

Seoul Administrative Court Decision 2017Gudan67639 decided January 16, 2018

1. Revocation of a judgment of the first instance;

2. All of the plaintiff's claims are dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The Defendant’s imposition of KRW 678,640 of indemnity against the Plaintiff on May 10, 2017 and the imposition of KRW 2,257,140 of indemnity against the Plaintiff on July 12, 2017 shall be revoked in entirety.

2. Purport of appeal

The same shall apply to the order.

1. Details of the disposition;

가. 피고는 서울특별시 또는 대한민국 소유인 서울 중구 ○○○○가, △△△△가, □□□□가, ◇동 일대 13,207㎡에 ‘서울광장’을 설치·관리하는 지방자치단체의 장이고, 서울특별시 서울광장의 사용 및 관리에 관한 조례(이하 ‘서울광장 조례’라 한다) 제10조 제1항, [별표] 광장사용료 기준 및 서울특별시 서울광장의 사용 및 관리에 관한 조례 시행규칙(이하 ‘서울광장 조례 시행규칙’이라 한다) 제9조, [별표] 광장사용료 기준은 서울광장을 광장동편, 광장서편, 잔디광장으로 구분하고 있다.

B. The Plaintiff, through press reports, followed the process of the criminal trial related to Nonindicted Party 2, in order to urge the domestic summons of Nonindicted Party 2 located abroad from July 9, 2015, the Plaintiff: (a) installed a bicycle installed in the plaza of Seoul Square (hereinafter “instant demonstration”); and (b) installed one person’s own bicycle on the site of the Seoul Square (hereinafter “instant demonstration”); (c) moved the said bicycle to the Seoul Special Metropolitan City Office building site at night; (d) installed a content adjacent to the said bicycle; and (e) put it in place at night (see attached photographs; hereinafter “the Plaintiff’s act”).

C. The instant demonstration was used as one bicycle, two large manufacturers, one small-sized container, three gambling room, one tent, and a large spacker, etc. (hereinafter “instant demonstration product”). During the instant demonstration, the area of the space in which the instant demonstration product is located during the Plaintiff’s demonstration is 1.76 square meters (=1.6 square meters x 1.1 square meters), and the area of the content installed by the Plaintiff at the time of the demonstration is 2.76 square meters.

D. On May 10, 2017, the Defendant imposed KRW 678,640 of the indemnity in accordance with the standards for usage fees of the square, Article 9 and [Attachment Table] of the Enforcement Rule of the Seoul Square Ordinance (hereinafter “the first disposition”), and imposed KRW 2,257,140 of the indemnity again on July 12, 2017 (hereinafter “the second disposition”), and the first and second dispositions are referred to as “the instant disposition”, and the details of the instant disposition are as indicated below.

The second disposition of 678,640 square meters (Seoul Metropolitan Government Office Site) of 4.52 square meters of 4.52 square meters (Seoul Metropolitan Government Office Site Site) from around 10 December 2017 to April 28, 2017 (Seoul Metropolitan Government Office Site Site) of the first disposition of the amount imposed on the area used for the period of use on the date of disposal of the ticket included in the main sentence on October 2017, 2017 to October 05, 2017 (Seoul Metropolitan Government Office Site), the second disposition of 2,257,140 square meters of 4.52 square meters (Seoul Metropolitan Government Office Site Site) of 2,257,140 square meters from around 10 December 2017 to April 28

[Reasons for Recognition] Facts without dispute, entry of Gap 1 through 4, 9 evidence, Eul 1 through 6, 15 evidence (including branch numbers), the result of on-site inspection by the court of first instance, the purport of the whole pleadings

2. Related statutes;

It is as shown in the attached Table related statutes.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The Plaintiff’s use of Seoul plaza to conduct a one-person demonstration for the public interest purpose, and thus does not fall under the subject of indemnity.

2) The instant demonstration goods are the minimum equipment to continue the demonstration for 24 hours, so it is possible to move immediately, and even if they are used, they do not constitute “Possession.”

3) It is in violation of the principle of proportionality to impose indemnity on the basis of the minimum use area (500 square meters) prescribed by the Seoul Square Ordinance, not the actual occupancy area.

4) Unlike the relevant tent in the Sewol ferry installed in the luminous plaza, imposing indemnity only to the Plaintiff is in violation of the principle of equity.

5) If an indemnity is imposed on the ground that one person’s demonstration was conducted in a state-owned or public property, it may infringe on the freedom of assembly and demonstration guaranteed by the Constitution.

B. Determination

1) Whether the Defendant has the right to impose indemnity

A) In the case of Seoul plaza:

The fact that the Seoul plaza is incorporated into land owned by the Republic of Korea (hereinafter “State-owned land”) as well as the land owned by the Republic of Korea (hereinafter “State-owned land”) is as seen earlier. However, as long as the Seoul plaza is established and managed on the state-owned land maintained by the Seoul Metropolitan Government and the State-owned land, the Seoul plaza itself constitutes administrative property under Articles 4 and 5 of the Public Property Act regardless of the State-owned land, and the Mayor of Seoul Metropolitan Government has the authority to impose the indemnity for unauthorized occupation of the Seoul plaza pursuant to Article 81

B) In the case of the Seoul Metropolitan Government Government Building Site:

The land for the Seoul Special Metropolitan City Office is owned by Seoul Special Metropolitan City and constitutes administrative property under Articles 4 and 5 of the Public Property Act, and the Mayor of Seoul Special Metropolitan City has the authority to impose indemnity for illegal occupancy of the site for the Seoul Special Metropolitan City Office building according to Article 81

2) Whether it constitutes an unauthorized occupancy under the Public Property Act

A) Article 81(1) of the Public Property Act provides for the collection of indemnity against a person who illegally occupies public property, and does not provide for the specific meaning of “Possession.” Generally, “Possession” refers to an objective relationship in which a person is in de facto control under social norms (see, e.g., Supreme Court Decisions 2013Da2559, 2566, Mar. 29, 2018). If a specific place is used for a tangible or regularly specific purpose, it is reasonable to deem that the use falls under “Possession” subject to indemnity. It does not necessarily need to be exclusively and exclusively used (see Supreme Court Decisions 92Nu1325, May 11, 1993; 2002Da68485, Oct. 15, 2004).

B) Comprehensively taking account of the following circumstances revealed by adding the purport of the entire pleadings to the facts acknowledged as seen earlier, it is reasonable to view that the Plaintiff’s act of this case constitutes “unauthorized possession” under the main sentence of Article 81(1) of the Public Property Act, where part of the Seoul Square and part of the site for Seoul Office building and the Seoul Metropolitan Government Office building site are used tangiblely and periodically. The Plaintiff’

① It is clear that the area of the space used by the Plaintiff at the time of the instant demonstration is 1.76 square meters (i.e., 1.6m x 1.1m) and the area of the content used at the time of the demonstration was used in physical form as the area of 2.76m m2. This is clearly distinguishable from the passage through the Seoul Square, etc., which is merely a passage through the Seoul Square, or is merely a form of general use that remains for the purpose of making good use of leisure time. Moreover, it is distinguishable from the ordinary type of demonstration that does not occupy and use a separate space in the form of a ticket or a signboard.

② From July 2015, the Plaintiff continuously installed and used the instant demonstration goods and content in the site of Seoul Square or Seoul Government office building site for a considerable period of time, by moving the instant demonstration goods to the site of Seoul Square and taking them at night at night at the content installed adjacent thereto.

③ Although the instant demonstration goods and content are movable facilities, it was physically impossible for the Plaintiff to use or pass through the instant demonstration goods and content in a certain place for a certain period of time (no material exists to deem that the Plaintiff had continuously moved the instant demonstration goods while conducting the instant demonstration). As seen earlier, such possession continues in a tangible and continuous manner, and thus, it cannot be evaluated as identical to temporarily keeping the goods by users, such as the Seoul plaza, etc.

④ Although users, such as Seoul Square, can pass through bypassing the goods of the instant demonstration or the content surrounding the Seoul Square, inasmuch as the use of the goods is not necessarily necessary to exclusively or exclusively take place, it cannot be evaluated that the Plaintiff’s act of using the specific place as a tangible or historical basis alone does not constitute “Possession.”

(5) The freedom of assembly and demonstration is guaranteed or the purpose of the demonstration is for the public interest, neither justified nor exempt any person from the payment of the cost for occupation and use of another person's property without authority, and the same shall also apply even if the property is public property.

3) Whether the calculation of indemnity based on the minimum use area under the Seoul Square Ordinance is lawful

In light of the following circumstances, the instant disposition that imposes indemnity on the basis of the minimum use area prescribed by the Seoul plaza Ordinance instead of the actual occupancy area is lawful. The Plaintiff’s assertion is not acceptable.

① The main text of Article 81(1) of the Public Property Act stipulates that the indemnity shall be imposed on the basis of “user fee or rent”. Articles 14(1) and the main text of Article 81(1) of the Enforcement Decree of the Public Property Act delegates the authority to determine user fee or rent by municipal ordinance of a local government within the scope of not less than 10/100 per annum of the appraised price. Article 10 and [Attachment] standards for the use fee of a plaza, Article 9 of the Enforcement Rule of the Seoul Square Ordinance, [Attachment] standards for the use fee of a plaza, Article 9 of the Enforcement Rule of the Seoul Square Ordinance, and [Attachment] standards

② Since the imposition of usage fees on the basis of the minimum used area of 500 square meters is necessary and appropriate to prevent the establishment of small-scale events and to resolve inconvenience among many users, it is difficult to view the Seoul Square Ordinance as unlawful beyond the scope of delegation under the public property-related statutes.

(3) It is realistic to impose indemnity on the basis of the actual occupancy area. In particular, as in this case, where the place or area of occupancy continues to be changed during a long period of time, or where the area of occupancy by a large number of unauthorized occupants continues to change, it is likely that excessive administrative power will be wasted for the measurement of the area of occupancy by individual and for

④ The imposition of indemnity is an administrative disposition of punitive nature against illegal occupancy. If a person who has lawfully reported the use of the Seoul plaza while imposing usage fees according to the standards for the minimum area of use on the person who has lawfully reported the use, and the indemnity is imposed on the person who has lawfully used the Seoul plaza based on the actual area of occupancy, the indemnity against an illegal occupant whose size is less than the amount of indemnity imposed on the person who has lawfully reported the use, thereby falling short of the amount of indemnity imposed on the person who uses the same area, is in violation of equity, and

4) Whether the principle of equity is violated

According to the statement in Eul evidence No. 9, it can be acknowledged that the indemnity is imposed on the person who occupied and used the luminous plaza by installing the relevant tent in the Sewol ferry case. Thus, the plaintiff's assertion is not accepted on a different premise ( even if the circumstances asserted by the plaintiff are acknowledged, such assertion is merely the purport of recognizing illegal equality and thus, it cannot be included in the object of equality protection under the Constitution, and it cannot be justified just because it is not just the reason that the plaintiff's assertion is different.)

5) Whether the possibility of infringing on the freedom of assembly or demonstration is possible

The instant disposition is merely a measure to impose indemnity on the Plaintiff’s illegal possession and use of the property for public use, and thus, cannot be deemed as infringing the Plaintiff’s freedom of assembly and demonstration (the instant demonstration goods cannot be deemed to be an essential content of the first person’s demonstration or an essential measure for one person’s demonstration, not an essential content of the demonstration, or an essential measure for one person’s demonstration, and the Plaintiff’s own intent may be sufficiently expressed to the public in such a way as not occupying and using the public property). Unlike other materials, there is no evidence suggesting that the Defendant issued the instant disposition solely for the purpose of restricting the Plaintiff’s demonstration.

In addition, even if the Plaintiff’s one person’s demonstration in Seoul Square, etc. is reduced due to the burden of indemnity, it is merely due to the Plaintiff’s personal economic situation, and the freedom of assembly and demonstration is guaranteed under the Constitution, or the demonstration for the public interest is not justified without permission or exempted from payment of the cost of occupation and use. The Plaintiff’s assertion is rejected.

4. Conclusion

Thus, the plaintiff's claim of this case shall be dismissed in all on the grounds of its reasoning. Since the judgment of the first instance is unfair on the grounds of its conclusion, the defendant's appeal is accepted and the judgment of the first instance is revoked and all of the plaintiff'

[Attachment]

Judges Kim Jong-ju (Presiding Judge)