2020du50324 The revocation of disposition excluding a person subject to relocation measures

Plaintiff:

[Defendant-Appellee] Plaintiff 1 et al., Counsel for defendant-appellee

Korea Land and Housing Corporation and one other

Law Firm Empik (Attorney Choi Sung-soo in charge)

Seoul High Court Decision 2020Nu30162 Decided September 18, 2020

January 14, 2021

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. Case summary and key issue

A. Review of the reasoning of the lower judgment and the record reveals the following circumstances.

(1) The Defendant Korea Land and Housing Corporation (hereinafter referred to as the “Defendant Corporation”) is the project implementer of the Incheon Land and Housing Site Development Project (hereinafter referred to as the “instant project”) in which the public inspection of the designation of the planned housing site development area was made on October 27, 2006, and the Plaintiff applied to the Defendant Corporation for the selection of a person eligible for relocation measures regarding the instant project.

(2) With respect to the instant housing in the instant project district, the Nonparty, the Plaintiff’s Dongin on November 6, 2009, as the Plaintiff’s Dongin

The registration of ownership transfer in the name of the plaintiff was made in sequence on the grounds of registration of ownership preservation and donation.

(3) Around December 2016, the Defendant Corporation established and publicly announced the relocation measures for the instant project (hereinafter “the instant public announcement”). Here, as to the requirements for the subject of supply of the housing site for migrants, the Plaintiff applied for the selection of the subject of supply of the housing site for migrants to the Defendant Corporation on March 29, 2017, the Plaintiff stated that the Plaintiff’s application for the designation of the subject of supply of the housing site for migrants obtained ownership by building the instant housing along with the instant housing in the 1970s, and submitted a written confirmation of the acquisition and transfer of the housing site register, the Nonparty’s certificate, the Nonparty’s certificate of confirmation of the use of the housing site registration certificate, the Nonparty’s certificate, the Nonparty’s certificate of the use of the housing site registration certificate, and the Nonparty’s certificate of the ownership registration certificate.

(5) On July 28, 2017, the Defendant Corporation notified the Plaintiff of the decision to exclude the Plaintiff from the subject of the relocation measures on the ground that “acquisition of housing after the base date” (hereinafter referred to as “the first decision”), and the written notification states that “In the event that there is an objection to the non-conformity decision, the Defendant Corporation may file an objection with our Corporation in writing along with evidentiary materials that can satisfy the requirements for the selection of the subject under the instant public notice given within 30 days from the date of receiving the notice, and also inform the Plaintiff that it may be able to file an administrative appeal or administrative litigation within 90 days.”

(6) On August 25, 2017, the Plaintiff filed an objection with the Defendant Corporation. In this case, the Plaintiff newly constructed the instant house in the 1970s and acquired ownership. However, due to the mistake in this Chapter, the Plaintiff stated that “the owner was registered in the building ledger as the Nonparty,” and additionally submitted evidentiary documents, such as a written confirmation of acceptance, a written confirmation of acceptance, a photograph of investigation of obstacles at the time of 1972, a written confirmation of the Nonparty’s name, and a written confirmation of village residents.

(7) On December 6, 2017, the Defendant Corporation notified the Plaintiff of the decision that the Plaintiff still excluded the Plaintiff from the subject of measures for relocation on the ground that “the previous owner cannot be acknowledged based on the fact-finding” (hereinafter referred to as “the second decision”). Meanwhile, on the other hand, the notice of the second decision, stating that “if there is an objection against the non-performance of the construction works in Korea again, it is known that the Plaintiff may file an administrative appeal or administrative litigation within 90 days from the date of receipt of the notice of the disposition in accordance with the Administrative Litigation Act.”

(8) On March 5, 2018, the Plaintiff filed an administrative appeal with the Central Administrative Appeals Commission (hereinafter referred to as the “Defendant Committee”) seeking revocation of the second decision. On October 17, 2018, the Defendant Committee rendered a ruling dismissing the Plaintiff’s request for administrative appeal on the ground that the second decision does not constitute a disposition on administrative appeals (hereinafter referred to as “instant ruling”), and the written ruling was served on the Plaintiff on October 31, 2018. (b) The issues in the instant case are subject to the second decision separately from the first decision and the administrative appeal and revocation litigation.

It is whether it constitutes "disposition" or not.

2. The judgment of the court below

A. The lower court determined that the second decision cannot be deemed a disposition subject to administrative litigation separately from the first decision, on the grounds that (i) the Plaintiff’s objection is difficult to be deemed a new application separate from the initial application; (ii) at the time of filing an objection against the second decision, the Plaintiff could file an administrative appeal or revocation lawsuit against the first decision; and (iii) the purport of maintaining the content of the second decision is that it does not cause any new change in the Plaintiff’s rights and duties; and (iv) it cannot be deemed that the principle of trust protection in the instant case is applied. The second decision against the Defendant Corporation among the instant lawsuit, was dismissed on the grounds that the part of the claim for revocation of the second decision against the Defendant Corporation was dismissed, and that the part of the claim for revocation of the instant decision against the Defendant Committee was not an error inherent in

B. However, it is difficult to accept the judgment of the court below as it is for the following reasons.

3. Judgment of the Supreme Court

A. The term “disposition” as a subject of an appeal litigation refers to an exercise or refusal of public authority as an enforcement of law with respect to a specific fact by an administrative agency, and other similar administrative actions (Article 2(1)1 of the Administrative Litigation Act). Whether an act by an administrative agency may be subject to an appeal litigation cannot be determined abstractly and generally. In specific cases, determination should be made on an individual basis by taking into account the content and purport of the relevant Acts and subordinate statutes, the subject, content, form, and procedure of the act, the substantial relation between the act and the disadvantage suffered by interested parties, such as the other party, and the principle of administration in the rule of law and administration, and the attitude of the administrative agency or interested parties related to the act (see, e.g., Supreme Court en banc Decision 2008Du167, Nov. 18, 2010). Where it is unclear whether an act by an administrative agency constitutes “disposition”, the determination should be made by taking into account the possibility and predictability of the other party having a significant interest in the selection of the method of appeal (see, etc.

B. Examining the factual relations in this case in light of the aforementioned legal principles, it is reasonable to view the second decision as "the subject of administrative litigation separate from the first decision." Specific reasons are as follows. (1) A rejection disposition against an application filed by the competent administrative agency for a beneficial administrative disposition is established by clearly expressing its intention to refuse it externally. If a party files a new application after a rejection disposition is issued, regardless of the title of the application, the rejection disposition again by the competent administrative agency should be deemed a new rejection disposition (see, e.g., Supreme Court Decision 2017Du52764, Apr. 3, 2019). Unless there are special provisions restricting the period of application for the disposition publicly announced in advance by the relevant law or the competent administrative agency, there is no legal basis to deny the second application, and even if there are special provisions restricting the period of application, whether the application period has expired shall be considered at the stage of determining whether the rejection disposition against the application is legitimate and not at the stage of examining the requirements of the lawsuit.

(2) Article 26 of the Administrative Procedures Act provides that when an administrative agency takes a disposition, it shall inform the parties of whether an administrative appeal, administrative litigation, etc. may file an appeal against the disposition, whether the appeal may be filed, the filing procedure and the filing period, and other necessary matters. In this case, if the defendant Corporation notified the plaintiff of the second decision and notified the plaintiff of the second decision that "if there is an objection against the second decision, the plaintiff may file an administrative appeal or the revocation lawsuit within 90 days from the date of the second notification," it can be known that the defendant Corporation itself was aware that the second decision constitutes a disposition to which the Administrative Procedures Act and the Administrative Litigation Act apply, and the plaintiff as the other party is also aware that the second decision is a disposition to which the Administrative Litigation Act apply. As such, it would be difficult to recognize that the second decision is a disposition to which the second decision is subject to administrative litigation (see Article 4 of the Administrative Procedures Act). It is against the principle of good faith (see Article 4 of the Administrative Procedures Act).

Supreme Court Decision 2010Du8676 Decided November 15, 2012, which was invoked by the court below, is related to a case where the administrative agency only made a decision of dismissal on the objection under Article 18 of the former Act on the Disposal of Civil Petitions (wholly amended by Act No. 13459, Aug. 11, 2015) and did not give an instruction on the method of filing an administrative appeal against the decision of dismissal (wholly amended by Presidential Decree No. 24235, Dec. 20, 2012), and Article 29 (3) of the former Enforcement Decree of the Civil Petitions Treatment Act (wholly amended by Presidential Decree No. 24235, Dec. 20, 2012) provides that when the head of an administrative agency notifies the result of filing an objection under Article 18 (2) of the Act, the reason for the decision, the method of filing an objection against the original rejection disposition, and the procedure for filing an objection against the decision of rejection shall be specified specifically).

C. Nevertheless, the lower court determined that the second decision did not constitute a disposition subject to administrative litigation separately from the first decision. In so determining, the lower court erred by misapprehending the legal doctrine on a disposition subject to administrative litigation, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point

4. Conclusion

Therefore, the lower judgment is reversed, and 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 Jae-soo

Chief Justice Lee Dong-won

Justices Park Il-san

Justices Heung-gu