[1] In a case where an application for permission, etc. as a beneficial administrative disposition is filed, whether it can be deemed that a public official committed an unlawful act in the course of performing his/her duties solely on the ground that the public official did not provide information or consideration

[2] In a case where Gap corporation submitted a business plan including the establishment of the HadiExperimental Research Institute in the river site to Eul, applied for permission to occupy and use the river site, and installed containers in the river site, and Eul corporation revoked permission to occupy and use a river site on the ground that Eul corporation installed a container without obtaining permission to engage in a development restriction zone under Article 12 of the Act on Special Measures for Designation and Management of Development Restriction Zones, the case holding that the judgment below which recognized Eul's liability to compensate for damages by local government

[1] As a premise for the liability for damages under the State Compensation Act, if an administrative disposition by a public official is unlawful, it shall be recognized that the administrative disposition was taken by violating the Act and subordinate statutes. Therefore, in a case where an application for permission, etc. which is a beneficial administrative disposition was filed, the mere fact that the applicant did not provide guidance or consideration necessary to achieve the purpose by taking into account the purpose of the administrative disposition in detail is not deemed to have committed an unlawful act in the

[2] In a case where Company A submitted a business plan including the establishment of cruel experiment research institute in a river site to a local government, applied for permission to occupy and use a river site, installed a container in a river site after obtaining permission to occupy and use the river site, and the local government Party B’s revocation of permission to use a container without obtaining permission to engage in a development restriction zone under Article 12 of the Act on Special Measures for Designation and Management of Development Restriction Zones even though the river site falls under a development restriction zone, Party A applied for permission to use a river site in a development restriction zone from the beginning for the purpose of achieving the purpose because Party A did not simply occupy and use the river site in a development restriction zone and tried to use it as YD Research Institute without obtaining permission to use it in a separate manner from the permission to use a river site, and even if Party A applied for permission to use a river site, it is difficult to view that there was proximate causal relationship between Party A’s act of a public official belonging to a local government and Party A’s act of installing a development restriction zone, and that Party B did not meet the requirements for permission to use permission.

[1] Article 2 (1) of the State Compensation Act / [2] Article 2 (1) of the State Compensation Act, Article 12 (1) and Article 14 (1) 4 of the Act on Special Measures for Designation and Management of Development Restriction Zones, Article 33 (1) 1, (3), (4), and Article 69 (1) 3 of the River Act

Asian Corporation

Gangnam-gu Seoul Metropolitan Government (Law Firm LLC, Attorneys Park Sung-chul et al., Counsel for the plaintiff-appellant)

Seoul Central District Court Decision 2015Na61414 Decided January 20, 2017

The part of the judgment below against the defendant is reversed, and that part of the case is remanded to the Panel Division of the Seoul Central District Court.

The grounds of appeal are examined.

1. As a premise for bearing liability for damages under the State Compensation Act, if an administrative disposition by a public official is unlawful, it shall be recognized that the administrative disposition was taken by violating the relevant Acts and subordinate statutes, etc. Therefore, in a case where an application for permission, etc. which is a beneficial administrative disposition was filed, the mere fact that the applicant did not provide guidance or consideration necessary to achieve the purpose of the administrative disposition in detail is not deemed to have committed an unlawful act in the course of performing his/her duties

2. According to the reasoning of the lower judgment and the record, the Plaintiff filed an application for permission to occupy and use the river site in the instant river site owned by the Defendant with a business plan containing the establishment of the Hadice Research Institute in the instant river site owned by the Defendant, and the Defendant, on April 8, 2014, obtained permission to occupy and use the said river site from the Plaintiff on the ground that the Plaintiff installed six containers on the said river site around July 2, 2014. The Defendant revoked the permission to use and use the said river site on November 6, 2014 on the ground that the said river site constituted a development restriction zone without obtaining permission prescribed in Article 12 of the Act on Special Measures for Designation and Management of Development Restriction Zones (hereinafter “Restriction on Development Restriction Zones”).

3. The court below held that since the Plaintiff’s application for occupancy and use of a river included the contents of establishing a PP Research Institute in the instant river site, the Defendant’s public official in charge of the Defendant should have reviewed whether the said river site is a development-restricted zone and whether it is possible to install facilities related to the purpose of the permit stated in the application for occupancy and use of a development-restricted zone, etc., and then notified the Plaintiff of whether to obtain permission through consultation with the relevant department or at least to obtain permission to install a river site as a development-restricted zone. However, the Defendant’s public official in charge of the Defendant did not grasp the aforementioned fact, without properly ascertaining it, used the permission to occupy and use a river for the purpose of establishing the PP Research Institute for the purpose of establishing the YP Research Institute, and the Plaintiff’s permission for occupancy and use of a container was revoked, the Defendant was responsible for compensating

4. However, it is difficult to accept the above determination by the court below for the following reasons.

Article 12(1) of the Act on Development Restriction Zones provides that a person who intends to occupy and use land in a river area shall obtain permission from the river management agency as prescribed by Presidential Decree, except where he/she performs an act falling under any of the subparagraphs of the proviso of the same Article with permission from the head of a Si/Gun/Gu. Article 33(1)1 of the River Act provides that a person who intends to occupy and use land in a river area shall not obtain permission from the river management agency, except where he/she conducts an act falling under any of the subparagraphs of the proviso of the same Article. Article 33(3) of the same Act provides that matters to be considered when a river management agency intends to grant permission to occupy and use a river under Article 33(3) of the same Act shall not include matters related to permission to engage in activities in a development restriction area. In addition, Article 69(1)3 of the River Act does not include matters related to permission to engage in activities in a development restriction area. In addition, permission, etc. under Article 14(1)4 of the same Act does not require permission from the head of a Si/Gun/Gu.

In light of the records, since the Plaintiff tried to use the instant river site belonging to a development-restricted zone as a YA research institute without simply occupying the instant river site, the Plaintiff failed to apply for permission to engage in the development-restricted zone from the beginning, or to have applied for permission to engage in the development-restricted zone separately from the permission to engage in the development-restricted zone and to have engaged in subsequent activities according to the result, it can be found that there was a fault in installing a container without permission to engage in the development-restricted zone. Accordingly, the Plaintiff’s loss incurred due to the Plaintiff’s mistake. Therefore, it is difficult to conclude that there was a proximate causal relationship between the Plaintiff’s act and the Plaintiff’s loss. Furthermore, the Defendant’s public official’s act is difficult to consider whether the requirements for permission to occupy and use the instant river site were met in accordance with the Plaintiff’s permission to occupy and use the instant river site, and further, whether the instant river site belongs to a development-restricted zone or whether the instant river site is needed to be installed as a development-restricted zone.

5. Nevertheless, the lower court recognized the Defendant’s liability for damages solely based on its stated reasoning. In so determining, the lower court erred by misapprehending the legal doctrine on the recognition of liability for damages caused by administrative disposition, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal

6. Therefore, without further proceeding to decide on the remainder of the grounds of appeal, the part against the defendant among the judgment below is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices

Justices Park Sang-ok (Presiding Justice)