[1] The criteria for determining whether a certain administrative act is a binding or discretionary act, and the method of interpreting administrative laws and regulations which serve as the basis for such an administrative act

[2] In a case where a village bus forwarder Gap collected the total amount of fuel subsidies paid to Gap during an illegal supply period with respect to the excessive amount of fuel consumption, the case affirming the judgment below which held that it cannot be interpreted that the return can not be ordered to the "normally paid subsidy" under Article 51 (3) of the former Passenger Transport Service Act, and the above recovery disposition is a binding act

[1] Whether an administrative act is a binding act or discretionary act cannot be uniformly defined, and it shall be determined individually in accordance with the form of a provision that forms the basis for the pertinent disposition, stay, or language. In addition, administrative laws and regulations that form the basis for an indive administrative act must be strictly interpreted and applied, and shall not be excessively expanded or analogically interpreted in the direction unfavorable to the other party to the administrative act, and even if a teleological interpretation that takes into account the legislative intent, purpose, etc. is not entirely excluded, such interpretation shall not deviate from the ordinary meaning of the language and text.

[2] In a case where a community bus forwarding agent Gap issued a disposition to recover the total amount of fuel subsidies paid to Gap during an illegal supply period against the excessive amount of fuel consumption, the case affirming the judgment below that it goes beyond the literal scope to interpret the above provision as requiring a passenger transport service provider to return "subsidies received by fraudulent or illegal means" pursuant to Article 51 (3) of the former Passenger Transport Service Act (amended by Act No. 11295, Feb. 1, 2012), and to order the return of "normally paid subsidies" to the passenger transport service provider; and in light of the form of the provision, the above recovery disposition is a binding act that requires the Minister of Land, Transport and Maritime Affairs or the Mayor/Do Governor to return the subsidies received.

[1] Articles 1 [General Administrative Disposition] and 27 of the Administrative Litigation Act / [2] Article 51 (3) of the former Passenger Transport Service Act (amended by Act No. 11295, Feb. 1, 2012)

[1] Supreme Court Decision 98Du17593 Decided February 9, 2001 (Gong2001Sang, 652), Supreme Court Decision 2007Du13791, 13807 decided Feb. 28, 2008 (Gong2008Sang, 462), Supreme Court Decision 2007Du18321 Decided May 29, 2008, Supreme Court Decision 201Du5490 Decided July 14, 201

Plaintiff (Attorney Park Jae-chul, Counsel for the plaintiff-appellant)

Olsan Market

Seoul High Court Decision 2010Nu14741 decided December 10, 2010

The final appeal against the Defendant’s winning part of the lower judgment is dismissed. The remaining final appeal is dismissed. The costs of final appeal are assessed against the Defendant.

1. The decision shall be made ex officio;

According to the reasoning of the judgment below and the records, the plaintiff sought the cancellation of the recovery disposition of this case and the suspension of payment of this case against the defendant, and the first instance court revoked the suspension of payment of this case and dismissed the plaintiff's remaining claims. Both parties appealed against the judgment of the first instance court, and the court below revoked the part against the plaintiff corresponding to the amount exceeding 44,042,810 won among the recovery disposition of this case among the judgment of the first instance and dismissed all remaining appeals and the defendant's appeal.

Although the Defendant submitted a written appeal stating the purport of the final appeal seeking the reversal of the entire judgment of the lower court, as seen earlier, the judgment of the first instance, which dismissed the Plaintiff’s remaining appeal and dismissed the claim for revocation of the instant restitution disposition, was partially maintained, and there is no benefit of dissatisfaction with respect to the Defendant’s winning part of the judgment of the lower court.

2. The grounds of appeal are examined.

A. As to the recovery disposition of this case

(1) Whether an administrative act is a binding act or discretionary act cannot be uniformly defined, and it shall be individually determined in accordance with the form of a provision that served as the basis for the pertinent disposition, stay, or language (see, e.g., Supreme Court Decisions 98Du17593, Feb. 9, 2001; 201Du5490, Jul. 14, 201). Furthermore, administrative laws and regulations that serve as the basis for an indive administrative act must be strictly construed and applied, and shall not be excessively expanded or analogically interpreted to the disadvantage of the other party to the administrative act, and even if a teleological interpretation that takes into account the legislative intent and purpose, etc. is not entirely excluded, such interpretation shall not go beyond the ordinary meaning of the language and text (see, e.g., Supreme Court Decision 2007Du13791, Feb. 28, 2008).

Article 51(3) of the former Passenger Transport Service Act (amended by Act No. 11295, Feb. 1, 2012) provides that “The Minister of Land, Transport and Maritime Affairs or a Mayor/Do Governor shall order a passenger transport service provider to return a subsidy or loan to the passenger transport service provider when the passenger transport service provider has received a subsidy or loan under Article 50 by fraud or other improper means, and if the passenger transport service provider fails to comply with it, the subsidy or loan may be recovered in the same manner as delinquent national or local taxes are collected.”

According to the reasoning of the judgment below, the court below held that the interpretation that the Minister of Land, Transport and Maritime Affairs or the Mayor/Do Governor may order a passenger transport service provider to return the “subsidies received by fraudulent or other illegal means” and that the said provision may be ordered to return the subsidies to the “normally received” pursuant to the above provision goes beyond the scope of the language and text. In light of the form of the above provision, stay, etc., the recovery disposition of this case is a binding act for which the Minister of Land, Transport

In light of the above legal principles and records, such determination by the court below is just, and there is no error in the misapprehension of legal principles as to the legal nature of the recovery disposition of fuel subsidy or the scope of the recovery disposition, as otherwise alleged in the grounds of appeal. The ground of appeal on

(2) The court below held that even if an external administrative disposition is a single administrative disposition, if there is a differentiation or a part of the disposition subject to the disposition can be specified, only a partial revocation can be made, and that the revocation part shall take effect with respect to the corresponding revocation part, and since the external administrative disposition or a part of the disposition in this case includes the part concerning the subsidy of 44,042,810 won which the defendant should order the return pursuant to the above provision and the part concerning the above subsidy exceeding the above subsidy which the defendant ordered the return without any legal basis, the court can only revoke the above subsidy exceeding the above subsidy which the defendant should order the return pursuant to the above provision and the partial revocation thereof becomes effective with respect to the revoked part. In light of the relevant legal principles and records, the above judgment of the court below is just and acceptable, and there is no error of law by misunderstanding the legal principles as to the differentiation of the

B. As to the instant disposition suspending payment

The petition of appeal filed by the Defendant does not contain any statement in the grounds of appeal as to this part, and the appellate brief does not contain any statement in the grounds of appeal as to this part. This part of the appeal shall be dismissed in accordance with Article 8(2) of the Administrative Litigation Act and Article 429 of the Civil Procedure Act. The allegation in

3. Therefore, the defendant's appeal as to the part in favor of the court below is dismissed, and the remaining appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices

Justices Lee Sang-hoon (Presiding Justice)