Plaintiff (Lijin Law LLC, Attorneys Lee Do-min et al., Counsel for plaintiff-appellant)

Mine Name Market (Law Firm No. Gong, Attorney Lee Jong-il, Counsel for the plaintiff-appellant)

April 2, 2019

Suwon District Court Decision 2018Guhap65843 Decided October 18, 2018

1. Revocation of the first instance judgment.

2. On April 4, 2018, the Defendant’s revocation of permission to use State-owned property granted to the Plaintiff and the order to reinstate shall be revoked.

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

The same shall apply to the order.

1. Details of the disposition;

【Evidence Cards 1 through 7, 1 through 4 (including each number; hereinafter the same shall apply), each of the statements and images of Evidence Cards 1 through 4, and the purport of the whole pleadings

A. A. Around 1982, the Plaintiff purchased an unauthorized building located on ( Address omitted) and (Land Number omitted) ground from the former owner (hereinafter “instant building”).

B. On January 1, 1990, the Defendant extended the permission to use the instant land at a three-year intervals after obtaining permission to use the land of the instant building (hereinafter “instant land”) from the Plaintiff on a road of 336 square meters, which is an administrative property, pursuant to the State Property Act (hereinafter “instant land”). On December 29, 2016, the Defendant determined the use of the instant land as “other” and the period of use from January 1, 2017 to December 31, 2019 (hereinafter “instant permission”).

C. The Plaintiff leased three shops within the instant building. On January 2018, Nonparty 1, Nonparty 2, and Nonparty 3, a lessee, leased each of the above stores from the Plaintiff and operated a restaurant and garlment room.

D. On January 19, 2018, the Defendant conducted a fact-finding survey on the permission to use the instant land on the ground that the Plaintiff concluded a lease contract with respect to the stores in the instant building and confirmed the receipt of rent from the lessee, and that “the Plaintiff shall use and benefit from the property permitted for use in violation of Article 30(2) of the State Property Act to another person,” and that the Plaintiff shall hold a hearing on the revocation of the permission to use the instant land until February 28, 2018, the Defendant demanded the Plaintiff to attend with the luminous viewing road until February 14:00, but the Plaintiff did not comply with the request. On March 30, 2018, the Defendant conducted a hearing with the Plaintiff’s absence on April 4, 2018, and then revoked the permission to use the instant land pursuant to Article 36(1)2 of the State Property Act and ordered the Plaintiff to reinstate the said land by April 30, 2018 (hereinafter “instant order to reinstate”).

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The Plaintiff’s act of owning the instant building located on the instant land and leasing the store in the said building to another person is an act of using and making profits from the instant land as the site for the instant building, and thus, does not constitute “act of allowing another person to use and benefit from administrative property” prohibited under Article 30(2) of the State Property Act.

2) In addition, the Plaintiff had been engaged in the lease business using the store inside the instant building since it obtained the first permission from the Defendant on January 1, 1990 for the use of the instant land from the Defendant to the present, and the Defendant had public officials under his control conduct an on-site investigation to extend the permission for the use of the instant land at a three-year period, even though he was aware of the current status of the instant building being used as the shop. However, the instant disposition on the ground that it was leased the shop inside the instant building for the present time goes against the principle of trust protection.

3) Therefore, the instant disposition should be revoked in an unlawful manner.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Article 1 of the State Property Act provides, “The purpose of Article 3 subparag. 1 is to ensure that the State serves the overall interest of the State” as one of the basic principles for administration and disposition of State property that the State must observe. Article 6 of the State Property Act provides, “Any person shall not use or benefit from State property unless he/she complies with the procedures and methods prescribed by this Act or other Acts.” Article 245 of the Civil Act provides, “The State Property Act provides, “The State Property Act shall not establish a private right to use State property except as otherwise provided for by Presidential Decree,” and Article 30(1), (2), and (36) of the State Property Act provides, “The State Property Act shall not, if the State Property is subject to permission for use, withdraw the permission for use of or benefit from State property, and the head of a central government agency shall not withdraw the permission for use of or benefit from State property unless the permission for use is revoked.”

As such, the State Property Act strictly separates state property into administrative property and general property, and in particular, prohibits disposal of administrative property in principle and treats it differently from general property, such as absolute prohibition, but exceptionally, allows a private person to use and benefit from it only in cases where permission for use by an administrative agency is granted to the extent that it does not interfere with its use or purpose. This is because administrative property is an asset preserved as a direct physical means or a special necessity for achieving administrative purposes of the State, and thus, it is likely to infringe on administrative purposes of such State if it is treated as an object of private transactions.

However, the revocation of permission under Articles 36(1)2 and 30(2) of the State Property Act after obtaining permission for use under Article 30(1) of the State Property Act constitutes an indive administrative act that restricts the rights of the people, and thus, the requirement should be strictly interpreted. Therefore, “the act of allowing a person who obtained permission for use to use or make profits from the property to another person” prohibited under Article 30(2) of the State Property Act is insufficient to allow a person to enter the State property permitted for use and use it. It is reasonable to deem that granting a person a right to use or make profits from the property, such as obtaining permission for use for the purpose of the State property.

On the other hand, the Civil Act defines land and buildings on the ground as the objects of separate ownership. Accordingly, in a case where the owners of land and buildings are different, buildings cannot exist regardless of the site, and thus, land which became a site for a building shall be deemed to be possessed by the owners of the buildings. In this case, even if the owners of the buildings do not actually occupy the building or its site, it shall be deemed that they occupy the site for the ownership of the building (see Supreme Court Decision 2002Da57935, Nov. 13, 2003).

2) As to the instant case, from the time of the first permission to use the instant building on January 1, 1990, the instant building existed on the instant land without permission, and thereafter, the period of permission to use continued to have been renewed and entered into the instant permission. In addition, in light of the purport of the evidence No. 9-1 and No. 2 as well as the overall pleadings and arguments, the Defendant would have granted permission to use the instant land to the Plaintiff, knowing the existence of the instant building on the instant land through an on-site investigation in the course of renewal of the period of permission to use.

According to the above legal principles, the Plaintiff shall be deemed to have occupied and used the instant land for the purpose of owning the instant building, and there is no evidence to acknowledge that the Defendant, when granting the instant permission, limited the Plaintiff to directly use and profit from the instant building in relation to the use of the instant land. Therefore, even if the Plaintiff leased a sectional store to a third party within the instant building, it shall be a kind of usage and profit-making method anticipated when granting permission for the use of the instant land for the purpose of owning the instant building. Therefore, such circumstance alone does not constitute a case where the Plaintiff allowed the lessee to use and profit from the instant land, which is the State property prohibited under Article 30(2) of the State Property Act, as the Plaintiff used and profit-making from the instant land, which is the State property prohibited under Article 30(2) of the State Property Act, to a third party. It is difficult to deem that the Plaintiff, who is the permitted person, is in a more unfavorable position than directly using the instant building,

In regard to this, the defendant asserts that when the plaintiff leases a sectioned store within the building of this case, it is anticipated that many unspecified persons have access to the land of this case, and that it should be deemed that all the land and buildings have been leased. However, in accordance with the above logic, it is unfair to conclude that the lease of all the commercial buildings naturally entails the lease of the part of the site of the building where the store is located, and there is no evidence to support that the plaintiff has used the land of

3) The Supreme Court Decision 2001Da82514, 82521 Decided October 24, 2003 cited by the Defendant is related to the case where part of the airport building, which is the permitted building, was leased as a commercial building again, and the case where part of the building on the land for which the permitted use was leased is different from the case where the building was partially leased, and thus, it cannot be applied as it is.

4) Therefore, it cannot be deemed that the Plaintiff’s act of operating a leasing business using the store located inside the instant building, for which the Plaintiff obtained permission for use, constitutes “act of allowing another person to use and benefit from administrative property” prohibited under Article 30(2) of the State Property Act. Thus, the instant disposition is unlawful since it is not recognized as a ground for disposition without examining the remaining issues. The Plaintiff’s assertion on this part is with merit.

3. Conclusion

Thus, the plaintiff's claim of this case shall be accepted as reasonable. Since the judgment of the court of first instance is unfair with different conclusions, the plaintiff's appeal is accepted, and the judgment of the court of first instance is revoked, and the disposition of this case is revoked, and it is so decided as per Disposition.

(attached Form omitted)

Judge Lee Young-young (Presiding Judge)

1) At the time of the first use permission, the use permission was granted with the area of 144 square meters among the area of 336 square meters on a road in Gwangju-si (road omitted). However, as a result of the cadastral status survey conducted on November 5, 2007, the area actually used is 87 square meters, and thereafter the use permission was granted with the area of 87 square meters as the area to be used. The area of the instant land actually used by the Plaintiff as before and after the execution of the cadastral status survey is the same.