Whether the act of selling factory sites under the Factory Placement and Factory Establishment Act and the act of selecting persons to be sold at the pre-stage is an administrative disposition subject to administrative litigation (negative)

In selling land in an agro-industrial complex managed by the head of a local government, even if there are some public regulations such as the Factory Placement and Factory Establishment Act, the sales contract for the land in an agro-industrial complex under the same Act does not differ from the sale and purchase between private parties, and the exercise of public authority or the exercise of public authority. Thus, the head of a local government who has selected an enterprise subject to parcelling-out prior to the sale of the above land does not merely constitute the pre-sale action to enter into this contract under the private law. Thus, this cannot be said to be the exercise of public authority or other administrative action corresponding thereto, and thus, it cannot be the subject of administrative litigation.

[1] Articles 32, 33, and 34 of the Factory Placement and Factory Establishment Act; Articles 41, 42, and 43-2 of the Enforcement Decree of the Factory Placement and Factory Establishment Act; Article 563 of the Civil Act; Article 2 of the Administrative Litigation Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Doz., Counsel for plaintiff-appellant)

Hysung Steel Co., Ltd. (Attorney Yang Jong-ho, Counsel for the plaintiff-appellant)

Supo Market (Attorney Park Byung-su, Counsel for the defendant-appellant)

Han Metal Co., Ltd. (Attorney Noh Young-dae, Counsel for defendant-appellant)

Gwangju District Court Decision 2002Guhap868 delivered on October 31, 2002

1. Revocation of the first instance judgment and dismissal of the instant lawsuit.

2. The total cost of the lawsuit shall be borne by the Plaintiff, including the cost of the supplementary participation.

1. Purport of claim

The defendant's decision of selecting a company subject to moving-in on March 8, 2002 shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

1. Basic facts

(a) The Defendant, on February 9, 2002, intended to sell the land for a agro-industrial complex located in Sejong-si, 1236-1 located in Sejong-si, 1236-1 (hereinafter referred to as the “instant land”), and publicly announced as follows:

(1)The first priority order to be selected as a sale entity: the manufacture entity in the wooden city which has been confirmed as a venture business, the second priority order: the manufacturer that has been located in the Sejong city and that has been relocated to the Sejong city in accordance with the third harbor development and urban planning projects, the company that has relocated the factory in accordance with the third harbor development and urban planning projects, the fourth priority order: the one that has a large job creation effect and which

(2)The method of selection shall be first examined, and shall be first selected from among the enterprises identified as suitable for the results of the examination of two-lane environmental and business feasibility, and, in the absence of such selection, shall be notified to the applicants for parcelling-out by March 8, 2002, after making a final decision by comprehensively assessing the financial standing, regional economy, and potential users in the second priority order.

B. From July 5, 192, the Plaintiff had been engaged in manufacturing and performing the business of manufacturing and performing the Micker steel pipes, dricks, etc. in the agricultural and industrial complex from around July 5, 1992, and the Defendant, an authorized administrator and management agency of the above agro-industrial complex, submitted an application for sale to the Defendant on the 23th of the same month, along with the documents required,

(c) On February 27, 2002, the Defendant requested the Small and Medium Business Corporation to review the feasibility of the first document review against the non-party limited liability company, the non-party limited liability company (hereinafter referred to as the "one metal"), the Hansung Commercial and the Korea Med Co., Ltd., which submitted an application for sale, accompanied by the business plan, etc. submitted by the Plaintiff and the Plaintiff and the Han Metal Business Corporation pursuant to Article 19 of the Integrated Guidelines for the Development and Operation of Agricultural and Industrial Complex (hereinafter referred to as the "Integrated Guidelines").

D.However, on March 6, 2002, the defendant judged that all the businesses and one metal are appropriate as a result of a self-business feasibility review on the grounds that the business plan submitted by the plaintiff and one metal business operator is not subject to a business feasibility review, as employment status is omitted, it is unclear whether they are subject to a review on the business feasibility of the above Corporation as the business plan submitted by the plaintiff and one metal business operator is omitted, and that the notification of the results of the above Corporation is delayed, and it is difficult to select the business operator by March 8, 2002, which is the deadline for announcement.

E. Accordingly, on March 8, 2002, the defendant held a deliberation committee at the wooden and Viewing situation room around 14:00 on March 8, 2002, selected the above single metal as an enterprise subject to parcelling-out, and notified the result to the applicants for parcelling-out such as the plaintiff.

[Based on Recognition] A without dispute, Gap evidence 1 through 5, Gap evidence 8-1 through 11, Gap evidence 12-1, 3, 4, Gap evidence 13-2 through 4, Eul evidence 13-3, Eul evidence 9-1 through 3, Eul evidence 9-1 through 10-7, and Eul evidence 10-1 through 7

2. Judgment on the parties' arguments

The plaintiff is the cause of the claim in this case. The defendant decided to select an enterprise subject to sale in accordance with the order of priority among the enterprises identified as a result of the review of feasibility in accordance with Article 19 of the Integrated Guidelines established and implemented in accordance with the Factory Placement and Factory Construction Act (hereinafter referred to as the "factory Placement Act"), which are established and implemented in the above notice of sale in accordance with Article 19 of the Integrated Guidelines, but the Corporation did not examine its own feasibility and passed the above single metal from the second examination without the result of the review of the business feasibility of the plaintiff and the single metal. The third final examination is to comprehensively determine the financial status, regional economy, user, etc. of the applicant for sale in lots who passed the second examination at the Deliberation Committee, and final examination is to be made, and all of the above one metal are without expertise to exclude the plaintiff from the above one metal in terms of financial status, regional economy, and the end user, and it is unlawful that the defendant should first select one metal as an abused enterprise subject to sale in lots, and thus, the defendant is not subject to administrative litigation.

First of all, when considering the nature of the claim of this case, the defendant's act of selecting one metal as an enterprise subject to sale is ultimately filing a revocation suit under the Administrative Litigation Act that requests the cancellation of the act by deeming it as a disposition subject to administrative litigation.

The term "disposition" means a lawsuit that revokes or alters an illegal disposition, etc. of an administrative agency (Article 4 subparagraph 1 of the Administrative Litigation Act), and the term "disposition as an object of a revocation suit" means the exercise or refusal of public power as an enforcement of law with respect to a specific fact by an administrative agency, and other corresponding administrative actions (Article 2 subparagraph 1 of the Administrative Litigation Act).

Of course, according to the relevant provisions of the Factory Placement Act, the head of a Si/Gun/Gu shall establish a management master plan for an agro-industrial complex and obtain approval from the Mayor/Do Governor (proviso of Article 33(1) of the Act), and the Minister of Commerce, Industry and Energy shall establish and publicly announce management guidelines for basic matters concerning the management of an agro-industrial complex (Article 32(1) and (2) of the Act), and the basic matters to be prescribed in the management master plan and management guidelines are legally prescribed (Article 33(4) of the Act, Article 41(1), (3), and Article 42(2) of the Enforcement Decree of the Act). Meanwhile, the head of a Si/Gun/Gu also regulates cases of selling or leasing land located in an agro-industrial complex (Article 34 of the Act, Article 43-2 of the Enforcement Decree of the Act), while regulating the cases of selling or leasing land in an agro-industrial complex (Article 17 through 19).

However, even if the defendant's sale of land in an agro-industrial complex is partly governed by public law in selling land in an agro-industrial complex, the sales contract for the land in this case by the defendant under the above Industrial Placement Act does not differ from that between private parties, and thus, it cannot be said that the defendant's exercise of public authority or the exercise of public authority is identical to that of public authority (see Supreme Court Decision 95Da16011 delivered on July 30, 1996).

Therefore, the defendant's act of selecting one metal as an enterprise subject to parcelling-out prior to the sale of the land in this case is nothing more than the pre-stage act to conclude this contract under the private law. Thus, this cannot be said to be an exercise of public authority or other similar administrative action, and thus, it cannot be the subject of administrative litigation.

Therefore, it is inappropriate for the plaintiff to seek cancellation of the selection of the selling company of this case in the administrative litigation proceedings against the defendant, aside from the fact that the plaintiff is entitled to remedy through the civil litigation proceedings.

3. Conclusion

Therefore, the plaintiff's lawsuit of this case is dismissed, and the judgment of the court of first instance is unfair, so it is revoked, and it is so decided as per Disposition by the decision to dismiss the lawsuit of this case.

Judges Park Ha-young (Presiding Judge)