2019Guhap6813 Revocation of Disposition of Imposition of Adjustment Payments

1. A;

2. B

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4. DI;

5. E.

6. F;

7. G.

8. H;

9. I

11. J.

12. K;

13. L;

14. M;

15.N

16. 0

17. P.

18. Q.

19. R

21. S;

22.

23. U;

24. V

25.W;

26. X

27. Y

28. Z;

29. AA

31. AB

32. AC

33. AD;

34. AE;

35. AF

36. AG

37. AH

38. AI;

39. AJ

41. AK;

42. AL;

43. AM;

44.N;

45. AO

46. AP;

47. A Qua

48. AR

49. AS

51. AT;

52. AU;

53. AV

54. AW;

55. AX;

56. AY;

57. AZ;

58. BA

59. BB

61.BC

62.BD

63.BE

64.BF

The head of Ulsan Metropolitan City Jung-gu

Law Firm Doz.

June 18, 2020

August 13, 2020

1. The lawsuits of the Plaintiff B, C, G, I, BG, N, V,O, AP, AS, AU, BC, and BE shall be dismissed respectively.

2. The respective claims of the Plaintiff A, D, E, F, H, H, K, K, M, Q, P, Q, R, T, T, U, W, X,Y, Z, AB, AB, AC, AD, AE, AF, AF, AG, AH, AI, AI, AJ, BJ, AK, BK, ATR, ATR, AT, AV, AV, AW, AY, AY, AY, AY, AY, AY, BB, BM, BD, and BF are all dismissed.

3. The costs of lawsuit are assessed against the plaintiffs.

The defendant's disposition of imposition of adjustment fees as shown in attached Form 1 that the plaintiffs paid to the plaintiffs in relation to the cadastral resurvey project in half-gu 1 shall be revoked.

1. Details of the disposition;

A. The Plaintiffs are the owners of the land in Ulsan-gu, Ulsan-gu, and the Defendant established the implementation plan for the cadastral resurvey project on March 3, 2016 regarding the half-gu, Ulsan-gu, the half-gu, the half-gu, the half-gu, the half-gu, and the half-gu, the 60,790 meters of the land under the former Special Act on the Investigation of Intellectual Property (amended by Act No. 17219, Apr. 7, 2020; hereinafter referred to as the "former Intellectual Property Investigation Act"), and completed the public announcement of the completion of the project and the preparation of the cadastral record on December 26, 2017.

B. On November 27, 2018, the Defendant: (a) determined the criteria for calculating the amount of adjustment by deliberation by the Cadastral Resurvey Committee; (b) prepared an individual adjustment fee report; (c) around December 11, 2018, the Plaintiff issued a notice of payment to the relevant prop, including Plaintiff B, G, I, BG, N, V, VI, AP, AP, AS, AU, BC, and BE; and (d) issued a notice of payment of adjustment payment to the Plaintiff C around January 25, 2019; (c) the Defendant requested re-appraisal on March 6, 2019; (d) the Defendant filed a request for re-appraisal on April 29, 201; (e) the notice of objection filed on May 3, 2019; and (e) the changed payment notice; (e) the Plaintiff’s submission of the adjustment payment notice; (e) the Plaintiff’s submission of the adjustment payment notice; and (e) the Plaintiff’s submission of the payment notice.

2. Whether the lawsuits filed by the Plaintiff B, C, G, I, BG, N, AD, AD, AD, N, AO, AP, AR, AS, AU, BC, BD, and BE are legitimate

A. Defendant’s defense prior to the merits

Plaintiff B, C, G, I, VI, AD, AD, AL, AP, AP, ASS, ASS, AS, AU, BC, BD, and BE filed the instant lawsuit on December 11, 2018 without filing an objection despite the receipt of the notice of the adjusted payment sent by the Defendant on December 11, 2018. The instant lawsuit by the said Plaintiffs is unlawful, for which the period for filing the lawsuit has expired.

B. Determination

1) Relevant legal principles

A) Article 18(1) of the Administrative Litigation Act provides that "a revocation suit may be instituted without going through an administrative appeal against a disposition in question pursuant to the provisions of Acts and subordinate statutes: Provided, That the same shall not apply to cases where there is a provision that a revocation suit cannot be instituted without going through an adjudication on an administrative appeal against the disposition in question." Article 20(1) of the same Act provides that "a revocation suit shall be instituted within 90 days from the date on which a disposition, etc. is known: Provided, That in cases where the proviso of Article 18(1) is applicable or where an administrative agency is able to file an administrative appeal, or where it is falsely notified that an administrative agency is able to file an administrative appeal, the period from the date on which the original copy of the written adjudication is served, and Article 27(1) of the Administrative Appeals Act provides that "the administrative appeal shall be filed within 90 days from the date

B) In full view of the foregoing provisions, when (i) the method of filing a revocation lawsuit immediately becomes aware of an administrative disposition and (ii) the method of filing a revocation lawsuit is chosen within 90 days from the date on which the relevant disposition is known; and (iii) the method of filing a request for an administrative appeal is chosen, within 90 days from the date on which the relevant disposition is known, a revocation lawsuit shall be filed; and (iii) the revocation lawsuit shall be instituted within 90 days from the date on which the written adjudication on the relevant administrative appeal is served. Therefore, in cases where a revocation lawsuit is not instituted without filing an administrative appeal within 90 days from the date on which the relevant disposition is known, the subsequent revocation lawsuit is unlawful as it has expired (see Supreme Court Decision 2011Du18786, Nov

C) The Administrative Appeals Act is an Act to relieve the rights or interests of the people infringed upon by an administrative agency’s unlawful or unreasonable disposition or omission through the administrative appeals procedure (Article 1). According to this, an administrative appeal may be filed under the Administrative Appeals Act with respect to a disposition or omission by an administrative agency, except as otherwise provided for in other Acts (Article 3(1)), but special cases concerning the administrative appeal procedure in lieu of the administrative appeal under the Administrative Appeals Act or the administrative appeal procedure under the Administrative Appeals Act may not be prescribed by other Acts, except as otherwise specifically provided for in other Acts (Article 4(1)).

D) Meanwhile, the former Cadastral Resurvey Act provides procedures to file an objection with the competent cadastral authority within 60 days from the date on which a landowner who received the notice of receipt of adjustment payment or the notice of payment raises an objection to the adjustment payment, and provides that the competent cadastral authority shall, within 30 days from the date of receipt of the notice of receipt of adjustment payment or the notice of payment, make the competent cadastral authority know in writing the result of the objection through deliberation and resolution of the Cadastral Resurvey Committee (Article 21-2). However, a landowner may file an administrative appeal under the Administrative Appeals Act or administrative litigation under the Administrative Litigation Act regardless of whether he/she files an objection, and the former Cadastral Resurvey Act does not provide that the landowner may file an administrative litigation within a certain period from the

E) In addition to these provisions, an objection to the notice of receipt of adjustment payments or the notice of payment under the former Cadastral Resurvey Act is only based on the procedural basis, but does not have any provision on the independence and fairness of the agency in charge of determining the objection, procedural rights of the parties, etc., the procedure following the objection is merely a procedure that requires the competent authority to re-examine the adjustment payment, and its nature differs from the administrative appeal under the Administrative Appeals Act, and a special case on administrative appeal prepared according to the special needs to consider the specialty and characteristics of the case.

Therefore, the period for filing an administrative appeal or the period for filing an administrative litigation cannot be deemed to be the period for filing an objection, only from the date the result of receipt of an adjustment payment notice or notice under the former Cadastral Resurvey Act was notified (see, e.g., Supreme Court Decisions 2010Du8676, Nov. 15, 2012; 2013Du26590, Apr. 24, 2014).

2) Specific determination

A) In full view of the overall purport of the statements and arguments in Eul evidence Nos. 11 and 12 as seen earlier, the defendant prepared an individual adjustment payment protocol and issued a notice of payment to the plaintiffs B, G, I, BG, N3 on December 11, 2018, V, AO, AP, AP, AS, AU, BC, and BE on December 17, 2018, and received the above notice on December 17, 2018, and the defendant issued a notice of payment of adjustment payment to the plaintiffs C on January 25, 2019, and the defendant received the above notice on January 29, 2019. The above plaintiffs filed the lawsuit of this case on July 25, 2019 against the plaintiffs except for the plaintiffs' period of filing the lawsuit of this case (hereinafter referred to as "the plaintiffs' lawsuit of this case"). It is unlawful.

B) However, according to the overall purport of evidence Nos. 2 and arguments, the date of the notice of payment of adjustment payment to Plaintiff AA is June 3, 2019. The date of the notice of payment of adjustment payment to Plaintiff AD and AL is June 5, 2019. The date of the notice of payment of adjustment payment to Plaintiff AD and BD is recognized as the date of June 4, 2019. The written evidence Nos. 11 and 12 are insufficient to acknowledge that the lawsuit filed by the above Plaintiffs was intending to file a lawsuit, and there is no other evidence to acknowledge it. Thus, the Defendant’s prior defense against the above Plaintiffs is without merit.

3. Whether the instant disposition is lawful

A. The summary of the plaintiffs' assertion (hereinafter referred to as the plaintiffs except the plaintiffs who deemed that the lawsuit is unlawful under the above paragraph (2))

Although there was an opinion to calculate the adjustment amount to the officially assessed individual land price as a result of the meeting of the landowners' council, the defendant made a determination of the adjustment amount as the appraised amount by forging the minutes, and made the disposition in this case, and even though the committee passed a resolution to the effect that it would hold a new intellectual inquiry committee in Ulsan Metropolitan City, Ulsan Metropolitan City, and made a decision to re-examine, the disposition in this case was unlawful as it deviates from and abused

B. Relevant statutes

Attached Form 2 shall be as listed in attached Table 2.

C. Determination

1) Whether the discretionary authority is deviates or abused

In light of the following circumstances, the defendant cannot be deemed to have forged the meeting minutes of the landowners’ council or abused the discretionary power, based on the following circumstances acknowledged by comprehensively taking account of the aforementioned evidence as stated in Gap evidence Nos. 3, Eul evidence Nos. 13 and 14 and the purport of the entire arguments. Accordingly, the plaintiffs’ assertion is without merit.

(1) Paragraph (3) of the former Cadastral Resurvey Act shall be calculated as the appraised value by an appraisal business entity under the Act on Appraisal and Certified Appraisers as of the time boundary is determined under Article 18: Provided, That where a landowners' council makes a request, it may be calculated as the officially announced value of individual land under the Act on the Public Announcement of Real Estate Values after deliberation by the competent Si/Gun/Gu Cadastral Resurvey Committee under Article 30.

② On March 6, 2018, the Defendant: (a) requested the landowners’ council to present his/her opinion on the computation of the adjustment amount pursuant to the above provision; (b) 3 (Appraisal Amount); and (c) on February 9, 2018, submitted to the Defendant the opinion that the standards for calculating the adjustment amount were defective in the officially assessed individual land price; (d) however, the Defendant held a cadastral resurvey committee on March 6, 2018 and decided to the effect that “the standards for calculating the adjustment amount shall be the appraised value, taking into account the purport of the amendment of the Act that selected the priority order for calculating the adjustment amount as the appraised value.”

③ After March 29, 2018, a civil petition was filed to demand re-determination of the adjustment fee calculation criteria. However, on May 9, 2018, Ulsan Metropolitan City received an inquiry from the Ministry of Land, Infrastructure and Transport to the effect that even if the landowners’ council requests the calculation criteria as the publicly assessed individual land price, the standards for calculation may be determined as the appraised value through deliberation by the Cadastral Resurvey Committee.

④ As a result, some of the plaintiffs et al. filed a civil petition with the Ulsan Metropolitan City citizen newspaper and the committee, the defendant was recommended to re-examine the criteria for calculating the amount of adjustment, and accordingly, he re-examineed at the Cadastral Resurvey Committee on November 27, 2018, but the criteria for calculating the amount of adjustment were determined to be the appraised value.

(5) There is a conflict between the increased size of the area for which the adjustment amount is paid depending on how to set the standards for calculating the adjustment amount and the profit-making room of the reduced size of the prop to receive the adjustment amount. In such cases, it is reasonable to deem that the administrative agency has discretion to adopt the standards for calculating the reasonable adjustment amount.

2) Whether it violates the principle of trust protection

In order to apply the principle of trust protection to the acts of an administrative agency, the administrative agency should have given the public opinion list that is the object of trust to the individual. However, there is no evidence to acknowledge that public officials belonging to the defendant attended the meeting of the landowners' council and gave the opinion that the standards for the calculation of the adjustment amount will be determined as the officially assessed individual land price. Even if the defendant in 2016 set the standards for the adjustment amount as the officially assessed individual land price while conducting the cadastral resurvey for the Ulsan-gu Taedong-gu and the school dong, it is a precedent before the enforcement of the former Cadastral Resurvey Act, which was amended by the landowner's council, to submit the opinion on the standards for the adjustment payment rather than the determination of the adjustment amount. Therefore, the disposition in this case cannot be deemed to violate the principle of trust protection, and therefore, this part of the plaintiffs' assertion is without merit.

4. Conclusion

Therefore, the lawsuits of the plaintiff B, C, G, I, II, N, VI, N,O, AP, AS, H, H, H, M, P, P, Q, P, Q, Q, Q, Q, BA, S, T, U, X, Y, Z, AB, AB, AB, AB, AE, AD, AE, AE, AE, AE, AE, AE, AE, AE, AE, AE, AE, AE, AE, AF, AF, AF, AH, AH, AH, AH, AH, AJ, AJ, AB, B, B, and B, A, B, A, B, and B, as it is without good cause. It is so decided as per Disposition by the court below.

The presiding judge, judge and deputy judge

Judges Kim Gung-sung

Judges Labor-Private Citizens

1) In the complaint filed by the Plaintiffs on July 25, 2019, the date of disposition is indicated as May 13, 2019, but the date of disposition is deemed as the date of notice of payment in attached Table 1.

It is reasonable, and the above statement appears to be a clerical error.

2) The Defendant stated in the reply dated September 16, 2019 that the filing date of the instant lawsuit was July 30, 2019, but it appears to be a clerical error.

3) The Defendant did not set up a defense against the Plaintiff N prior to the merits, but considered ex officio.

4) Two members who were not present at the meeting of the said landowner’s council are the Defendant’s opinion that the criteria for calculating the amount of adjustment are defective at the appraised value after the said meeting.

I express my opinion to this effect.