Plaintiff (Law Firm Daeho, Attorneys Sung-soo et al., Counsel for the plaintiff-appellant)

The head of Gangseo-gu Busan Metropolitan Government (Law Firm Korea, Attorneys credit rating et al., Counsel for the defendant-appellant)

June 23, 2017

1. The plaintiff's claim is dismissed.

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

On June 15, 2016, the Defendant’s notice of obligation to dispose of farmland of 2,158 square meters in Gangseo-gu, Busan ( Address omitted) that the Plaintiff reported shall be revoked.

1. Details of the disposition;

A. On August 7, 2008, the Plaintiff is the owner of the farmland in this case, which was acquired on the ground of legacy, from Gangseo-gu Busan Metropolitan City ( Address omitted) 2,158 square meters (hereinafter “the farmland in this case”).

B. As a result of the Defendant’s fact-finding survey on farmland from September 1, 2015 to November 30, 2015, the Plaintiff discovered the fact that the instant farmland was used for the purpose of using the factory site or loading goods without using it for agricultural management, and subsequently, on June 15, 2016, the Plaintiff notified the Plaintiff of the obligation to dispose of the instant farmland (hereinafter “instant disposition”) as between June 15, 2016 and June 14, 2017 pursuant to Article 10(2) of the Farmland Act (hereinafter “the instant disposition”). If the instant farmland is not disposed of within the said period, the disposition order was taken in accordance with Article 11 of the Farmland Act, and the enforcement fine equivalent to 20/100 of the officially announced land price was imposed every year pursuant to Article 62 of the Farmland Act.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, 10, 11, 13, Eul evidence Nos. 1 through 7, 10, 16, 17, 20 (including the number of each branch; hereinafter the same shall apply), the result of the appraisal commission to the non-party appraiser of this court, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) According to Articles 6(2)4 and 7(1) of the Farmland Act, where farmland is acquired by inheritance (including testamentary gift; hereinafter the same shall apply), it may be owned up to 10,000 square meters even without agricultural management. Thus, the Plaintiff, who acquired the farmland of this case (2,158 square meters) with an area not exceeding 10,000 square meters due to testamentary gift, may not be obliged to dispose of the farmland of this case pursuant to Article 10(1) of the Farmland Act.

2) The farmland in this case is currently a concrete package, and various facilities and self-defenses are stored in the place of business in the name of “○○ Chemicals” (hereinafter “the place of business in this case”). As such, it is no longer impossible to restore farmland to its original state, and it does not constitute “farmland” as defined in Article 2 subparag. 1 of the Farmland Act.

3) The Plaintiff was issued a corrective order and a disposition imposing a non-performance penalty on the ground that the Plaintiff committed an illegal alteration of form and quality of the instant farmland and an illegal act. However, the Defendant’s notification that the Defendant would impose a non-performance penalty while rendering the instant disposition is in violation of the principle of trust protection, even though the Plaintiff entered into a contract to sell the land for exclusive use complex to small and medium enterprises

4) In light of the fact that the Plaintiff entered into a sales contract for the exclusive complex for small and medium enterprises as above and paid a considerable amount of money, and that there is a possibility that considerable expenses and business losses will occur when the Plaintiff moved to the exclusive complex for small and medium enterprises again after moving the instant business place operated by the Plaintiff in the farmland in this case, the instant disposition also violates the principle of proportionality.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Determination on the first argument

A) According to Article 6(2)4 of the Farmland Act, “a person who acquires and owns farmland by inheritance” may own farmland even if he/she does not use it for his/her own agricultural management. A person who acquires farmland by inheritance and does not engage in agricultural management can not own a total of 10,000 square meters out of the inherited farmland (Article 7(1) of the Farmland Act), and a person who acquires and owns farmland by inheritance may acquire farmland without obtaining the qualification certificate for acquisition of farmland (Article 8(1)1 of the Farmland Act).

Meanwhile, where a person who acquired farmland by inheritance is found to own farmland in excess of 10,000 square meters in excess of his/her own agricultural management without a natural disaster, farmland improvement, disease, lease, or free lease (Article 10(1)1 of the Farmland Act). In principle, the farmland owner shall dispose of the farmland, and the farmland owner shall not be leased or free of charge, but where the farmland is acquired by inheritance, lease or free of charge shall be allowed (Article 23(1)1 of the Farmland Act), and even if the farmland exceeding 10,000 square meters is acquired by inheritance, if the farmland owned in excess of the maximum limit of ownership is leased or free of charge (Article 7(4) of the Farmland Act).

나) 위 관련 규정에 비추어 이 사건에서와 같이 상속으로 인하여 취득한 농지의 면적이 10,000㎡를 초과하지 아니하는 경우에 그 농지 소유자는 자기의 농업경영에 이용하지 아니하거나, 농지의 임대차 또는 사용대차를 통하여 농지로 사용하지 아니하더라도 해당 농지를 계속하여 소유할 수 있는지 여부에 관하여 살피건대, ㉠ 국가는 농지에 관하여 경자유전의 원칙이 달성될 수 있도록 노력하여야 하며, 농지의 소작제도는 금지되고( 헌법 제121조 ), 농지는 국민에게 식량을 공급하고 국토 환경을 보전하는 데에 필요한 기반이며 농업과 국민경제의 조화로운 발전에 영향을 미치는 한정된 귀중한 자원이므로 소중히 보전되고 공공복리에 적합하게 관리되어야 하며, 농업 생산성을 높이는 방향으로 소유·이용되어야 하고, 투기의 대상이 되어서는 아니 되는 점( 농지법 제3조 ), ㉡ 경자유전의 원칙에 따라 자기의 농업경영에 이용하거나 이용할 자가 아니면 농지를 소유하지 못하고( 농지법 제6조 제1항 ), 농지의 임대차 또는 사용대차 또한 원칙적으로 금지하면서( 농지법 제23조 제1항 ), 예외적으로 자기의 농업경영에 이용하지 아니하더라도 농지를 소유할 수 있는 경우 또는 농지를 임대 또는 사용대할 수 있는 경우를 제한적·열거적으로 규정하고 있는바( 농지법 제6조 제2항 , 제3항 , 제7조 제4항 , 제23조 제1항 각 호 등), 위와 같은 예외적·제한적인 사유에 상속으로 인하여 농지를 취득하는 경우를 포함시키고 있는 점, ㉢ 농지법 제10조 제1항 제1호 , 농지법 시행령 제9조 제1항 에서는 농지를 자기의 농업경영에 이용하지 않아도 될 정당한 사유로 상속으로 인한 토지의 취득을 포함시키지 않고 있고, 오히려 농지를 취득하게 된 권원에 관계없이 자기의 농업경영에 이용하지 않는 경우 그 소유 농지를 임대 또는 사용대하지 않는 한 해당 농지를 처분하여야 하는 것으로 규정하고 있는 점, ㉣ 헌법에서 정하고 있는 경자유전의 원칙과 이를 실현하기 위해 농지법에서 농업경영에 이용하지 않는 농지의 소유 및 이용에 대하여 여러 제한과 의무를 부과하고 있는 점에 비추어 볼 때 ‘자기의 농업경영 등에 이용하지 아니할지라도 상속으로 농지를 취득하여 소유할 수 있는 경우’의 범위를 엄격하게 판단하여야 할 필요가 있는 점 등을 종합하여 보면, 상속으로 적법하게 취득한 농지이고 그 취득한 농지의 면적이 10,000㎡를 초과하지 아니한다고 하더라도, 해당 농지를 직접 자기의 농업경영에 이용하지 아니하거나, 임대차 또는 사용대차를 통해 농업경영에 이용하지 아니하면서 무단으로 다른 용도로 사용하는 경우에는 농지법 제10조 제1 , 2항 에 의한 농지처분의무를 부담한다고 봄이 상당하다.

C) Ultimately, the instant disposition is lawful for the Plaintiff’s use of the farmland of this case for its own agricultural management, or for the use of the farmland of this case without any justifiable reason, such as permission for diversion of farmland, without any justifiable reason. The Plaintiff’s assertion on a different premise is without merit.

2) Determination on the second argument

A) Whether “farmland” under Article 2 subparag. 1 of the Farmland Act is a “farmland” should be determined depending on the actual state of the pertinent land regardless of the land category in public record. Even if the farmland is changed, if the change is temporary, and if it is possible to facilitate the restoration of farmland to the original state, the land still constitutes farmland under the Farmland Act. In addition, even if the farmland stipulated under the Farmland Act is actually used for other purposes, if it is changed to the form and quality or converted into the original state without following lawful procedures, and if it is not a situation where it is impossible to recover as farmland, but it is merely a temporary loss of the nature of farmland in light of its form and conditions and the current state of use of surrounding land (see Supreme Court Decisions 2006Du8235, May 31, 2007; 2012Du3019, Jun. 28, 2012).

B) In light of the relevant legal principles, according to the statements in Evidence No. 11, No. 11, No. 2, No. 10, and No. 20 regarding the instant case, the farmland of this case is covered by soil, sand, gravel, etc., and the farmland of this case is recognized as the fact that a building or timber, etc. built by the Plaintiff for the operation of the instant business place is loaded.

However, in full view of the following circumstances, which are acknowledged by comprehensively considering the aforementioned evidence evidence evidence evidence Nos. 18 and 19 as a whole and the purport of the entire arguments, i.e., the farmland of this case was unlawfully diverted without following lawful procedures, such as obtaining permission for diversion of farmland under the Farmland Act or permission for temporary use for other purposes. The farmland of this case is merely packed in soil, sand, gravel, etc., and thus, it seems difficult to remove or move the above building in light of the shape of the building constructed in the farmland of this case, and even if the farmland was already packed with concrete, it is not impossible to remove or move the above building in light of the shape of the building constructed in the farmland of this case, and even if it was already packed with concrete, it is reasonable to view that the farmland of this case falls under the "farmland" as still defined in the Farmland Act, because its change is merely temporary, and it can be easily implemented as farmland. Therefore, the plaintiff's assertion on this premise is without merit.

3) Judgment on the third argument

A) In order to apply the principle of trust protection to the act of an administrative agency in administrative legal relations, first, the administrative agency should name the public opinion that is the object of trust to the individual, second, there is no reason for the individual to believe that the individual's statement of opinion is justifiable, third, the individual must act in a similar manner as a result of the individual's trust in the name of the administrative agency's statement of opinion, fourth, the administrative agency's disposition that is opposite to that of the opinion statement of the administrative agency, thereby causing an infringement on the individual's interest, fifth, if an administrative disposition is taken in accordance with the previous statement of opinion, it is necessary to establish the requirements such as that there is no possibility that such act may seriously undermine the public interest or legitimate interests of a third party (see Supreme Court Decision 2004Du13592, Feb. 24, 20

B) In light of the relevant legal principles as seen earlier, the Defendant imposed KRW 14,058,00 for non-performance penalty for the year 201 on the ground that the Plaintiff was notified of corrective measures or measures to implement restoration to the original state on November 17, 2010 under Article 12 (Restriction on Acts within Development Restriction Zones) of the Act on Special Measures for Designation and Management of Development Restriction Zones. The Defendant imposed KRW 50,000 for non-performance penalty for the year 201 on the Plaintiff on April 27, 2012. The Defendant confirmed that the Plaintiff was located in the exclusive complex for small and medium enterprises and imposed KRW 50,00 for non-performance penalty for the reason that the Plaintiff did not perform the corrective measures or measures to implement restoration to the original state under Article 12 (Restriction on Acts within Development Restriction Zones) of the Act on Special Measures for Designation and Management of Development Restriction Zones. However, it is difficult to view that the Defendant did not perform the duty to impose the charges for non-performance penalty for non-performance of farmland for the following reasons.

4) Judgment on the fourth argument

As alleged by the Plaintiff, even if the disposal of the farmland of this case takes place in accordance with the disposition of this case, expenses and business losses may be incurred to the Plaintiff, considering the fact that the Constitution of the Republic of Korea provides for the principle of freedom of competition in the Constitution of the Republic of Korea, and accordingly, the Farmland Act also limits the use or use of farmland to the person who uses the farmland for his own agricultural management in principle, with the aim of promoting the management stability of farmers through efficient use and management of farmland, and promoting the strengthening of agricultural competitiveness and the balanced development of the national economy through the improvement of agricultural productivity, it is reasonable to deem the notification of farmland disposal obligation provided for in Article 10 (1) and (2) of the Farmland Act of the Republic of Korea as a continuous act. In addition, if the farmland is used without permission without using it for its own agricultural management, and if it can continue to own the farmland only on the ground that economic losses occur in its restoration or transfer of facilities, etc., it is difficult to view that the above disposition of this case is in violation of the principle of proportionality as above.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

[Attachment]

Judges Han Young-young (Presiding Judge)