[1] The meaning of an administrative disposition as an effective requirement

[2] Meaning of “the date when the other party becomes aware of the disposition, etc.,” which is the starting point of the filing period of a lawsuit under Article 20(1) of the Administrative Litigation Act

[1] The arrival as a requirement for taking effect of an administrative disposition is sufficient until the other party to the disposition actually becomes aware of the content of the written disposition and the other party to the disposition is placed in a state recognizable to the other party. If the written disposition is delivered to his/her domicile on resident registration, and the other party to the disposition or the person entrusted with the authority to receive postal items receives it, it shall be deemed that the other party to the disposition becomes aware

[2] The "date when the other party becomes aware of the existence of a disposition, etc.", which is the starting point of the filing period of a lawsuit under Article 20 (1) of the Administrative Litigation Act, refers to the date when the other party becomes aware of the existence of the relevant disposition, etc. by means of notice, public notice, or other methods. Thus, when the other party becomes aware of the existence of an administrative disposition by notifying the other party of such fact, the filing period of a lawsuit under Article 20 (1) of the Administrative Litigation Act shall be deemed to run. If the other party becomes aware of the existence of a disposition by social norms, such as serving the other party's domicile on the domicile, etc., unless there is any counter-proof, it may be presumed that the other party was aware of the disposition, unless there is any counter-proof against the special circumstances such as the fact that the mail was lost or returned

[1] Article 20 (1) of the Administrative Litigation Act / [2] Article 20 (1) of the Administrative Litigation Act, Article 14 (1) of the Administrative Procedures Act

[1] Supreme Court Decision 88Nu940 Decided January 31, 1989 (Gong1989, 365) / [2] Supreme Court Decision 91Nu3819 Decided March 27, 1992 (Gong1992, 1439), Supreme Court Decision 99Du9742 Decided December 28, 199, Supreme Court Decision 2014Du8254 Decided September 25, 2014

Plaintiff

Head of the Busan Metropolitan Government Maritime Affairs Office

Busan High Court Decision 2016Nu21589 decided October 21, 2016

The part of the judgment below against the defendant is reversed, and that part of the case is remanded to Busan High Court.

The grounds of appeal are examined.

1. Article 80(3) of the former Building Act (amended by Act No. 13471, Aug. 11, 2015) provides that “Where a person with the authority to grant permission imposes a non-performance penalty pursuant to paragraph (1), he/she shall do so in writing by specifying the amount, reason for imposition, deadline for payment, receiving agency, method of raising an objection, institution raising an objection, etc.” The main text of Article 14(1) of the Administrative Procedures Act provides that “Service shall be made by mail, delivery, information and communications network, etc., but shall be the address, residence, place of business, office, or e-mail address of the person receiving the service (including his/her representative or agent; hereinafter the same shall apply).” The main text of Article 20(1) of the Administrative Litigation Act provides that “a revocation lawsuit shall be filed within 90 days

2. The arrival as a requirement for taking effect of an administrative disposition is sufficient until the other party to the disposition actually knows the content of the written disposition and it is sufficient for the other party to be located in a situation where the other party to the disposition becomes aware of the content of the written disposition. The written disposition is served as his resident registration address of the other party to the disposition, and the other party to the disposition is in a situation where the other party to the disposition can become aware of the other party to the disposition upon receipt of the other party’s office member or other person delegated with the authority to receive postal items (see

In addition, “the date when the other party becomes aware of the disposition, etc.”, which is the starting point of the filing period of a lawsuit as stipulated in Article 20(1) of the Administrative Litigation Act, refers to the date when the other party becomes aware of the fact that the relevant disposition was made by means of notice, public notice, or other methods. Thus, when the other party becomes aware of the fact that an administrative disposition was made by notifying the other party of such fact, the filing period under Article 20(1) of the Administrative Litigation Act shall be deemed to run (see, e.g., Supreme Court Decision 2014Du8254, Sept. 25, 2014). If the other party becomes aware of the fact that an administrative disposition was made by recognizing such fact by the other party, the written disposition shall be presumed to have been aware of the disposition, unless there is any counter-proof evidence (see, e.g., Supreme Court Decision 99Du9742, Dec. 28, 199).

3. Review of the reasoning of the lower judgment and the evidence duly admitted by the lower court reveals the following facts.

① The Plaintiff constructed the second floor above ground (hereinafter “instant building”) in Busan, Daegu ( Address 1 omitted), and continued from the time when the registration of ownership preservation was completed on July 23, 2012 to February 22, 2016, at the time of filing the instant lawsuit, to the time of the filing of the instant lawsuit, “In Busan, Busan, Daegu ( Address 2 omitted)” was transferred to the move-in report as a resident registration address.

② Around July 2012, the Defendant confirmed the Plaintiff’s unauthorized extension of the instant building, and issued a disposition imposing KRW 2,128,000 for compelling the performance (hereinafter “instant first disposition”) upon the Plaintiff on January 8, 2013, following prior notice, corrective order, demand for its implementation, imposition of charges for compelling the performance. Around that time, the Plaintiff filed an administrative appeal against the instant first disposition, and was dismissed by the Busan Metropolitan City Administrative Appeals Commission on February 19, 2013.

③ A summary order of KRW 70,000 (20,000,000,000,000) was issued as of May 9, 2013, with the recognition of the Plaintiff’s violation of the Building Act regarding the above unauthorized extension. The above summary order was sent to the Plaintiff’s domicile on the Plaintiff’s resident registration, and around that time, the Plaintiff paid a fine of KRW 700,000 under the above summary order.

④ On December 16, 2013, the Defendant issued a disposition imposing KRW 2,063,00 on the Plaintiff (hereinafter “instant disposition”). The Defendant did not pay the Plaintiff a charge for compelling compliance and a charge for compelling compliance with the instant disposition; on April 8, 2014, the Plaintiff’s (vehicle number omitted); the instant building owned by the Plaintiff was attached; and the instant building owned by the Plaintiff was attached on October 27, 2014; each of the instant orders of seizure was sent to the Plaintiff’s domicile on the Plaintiff’s resident registration address; and the Plaintiff made several objections against each of the instant dispositions by telephone or visiting.

⑤ On January 15, 2015, the Defendant issued a disposition imposing KRW 2,187,000 on the Plaintiff (hereinafter “instant disposition”). On July 7, 2015, the Defendant sent to the Plaintiff a notice of default demanding the Plaintiff to pay the total amount of KRW 6,378,000 of the charges for compelling the performance of each of the instant dispositions. On August 10, 2015, the Plaintiff filed an objection against the instant disposition No. 1 and submitted the said notice of default accompanied by the said notice of default.

4. The following facts revealed in light of the legal principles as seen earlier, i.e., ① a notice of attachment for the collection of a disposition No. 1 and a charge for compelling the performance of a disposition No. 2 and a summary order for the same reason as that of a disposition No. 2 were sent to the Plaintiff’s domicile on the Plaintiff’s resident registration, and the Plaintiff appears to have received all of these facts. ② Since the Plaintiff made several objections to the Defendant regarding the attachment disposition and a disposition for arrears due to the unpaid charge for compelling the performance of a disposition No. 2 and a disposition for compelling the performance of a disposition No. 3, the Plaintiff appears to have been aware of the fact that the charge for compelling the performance of a disposition No. 2 and the disposition No. 3 had already been imposed on the Defendant. 3, and the Plaintiff did not appear to have been subject to the disposition No. 2 and a disposition No. 3 because he did not actually reside at a different location with the Defendant’s resident registration address, it is difficult to conclude that the Plaintiff did not present any evidence regarding the above disposition No. 2 and the disposition No. 3. 3.

Therefore, the lower court should have deliberated and determined whether the pertinent disposition became effective on the basis of whether the Plaintiff was in a state where the details of the pertinent disposition were known by further examining the timing and circumstances when the Plaintiff became aware of the imposition of a non-performance penalty imposed in the instant disposition No. 2 and the instant disposition No. 3, and further, should have deliberated and determined whether the instant lawsuit seeking revocation of the said disposition complies with the filing period, and if complying with the foregoing, whether there exist any unlawful grounds alleged

Nevertheless, the lower court determined that the instant Disposition Nos. 2 and 3 were null and void on the grounds indicated in its reasoning, including the absence of evidence that each of the instant Disposition Nos. 2 and 3 has reached the Plaintiff. In so determining, the lower court erred by misapprehending the legal doctrine on the arrival of the disposition as an effective requirement, and the presumption of the arrival of registered mail, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion

5. Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin (Presiding Justice)