[1] The purpose of the permission system of the administrative agency for the disposal of traditional temple properties and the standard of determining whether to grant permission

[2] The case holding that since the transfer of a parcel of land used as part of a traditional temple's boundary contributes to the purpose of existence of the traditional temple, it cannot be deemed that the existence of the traditional temple itself is in danger or interfere with the development of Buddhist culture

[3] The requirements for restrictions on the application of the amended law in the event that the applicable law of the administrative disposition was enforced

[4] The purport of the proviso of Article 6 (1) of the Preservation of Traditional Buddhist Temples Act that requires the representative of the representative organization to submit a letter of approval for the transfer of the temple property

[5] The case holding that it is unnecessary to protect trust in the existence of the Traditional Temple Preservation Act prior to the amendment in light of the circumstances of the Korean Traditional Temples Preservation Act, on the ground that applying the amended Traditional Temple Preservation Act to an application for a permit to transfer land used as part of the boundaries of the traditional Buddhist temples, the approval of the representative of the affiliated representative body is omitted," because it is not possible to reject the application for a permit to transfer the land

[1] The order to obtain permission from an administrative agency for the disposal of a traditional temple property is to protect and maintain the temple property so that the temple can achieve its original purpose of existence and contribute to the development of culture. Thus, in determining which the competent administrative agency should permit the disposal of the temple property, it shall be based on whether the disposition of the property conforms to the above purport.

[2] The case holding that since the transfer of land being used as part of the temple's temple's boundary contributes to the purpose of existence of the traditional temple, it cannot be deemed that the existence of the traditional temple itself is in danger or interfere with the development of Buddhist culture.

[3] Even in cases where the applicable statute is amended, the application of the amended statute may be limited to the protection of public confidence in the application of the amended statute, unless otherwise stipulated by the transitional provision. However, in cases where the public confidence in the existence of the preceding statute prior to the amendment in the application of such amended statute is deemed more worthy of protection than that of the public interest in the application of the amended statute, the application of the amended statute may be limited to the protection of such public confidence.

[4] The purport of the proviso of Article 6(1) of the Preservation of Traditional Buddhist Temples Act requires the submission of a letter of approval of the representative of a representative organization under his/her jurisdiction in the transfer of the temple property is to ensure that the competent administrative agency can determine whether the transfer of the relevant temple’s property contributes to the inherent purpose of the temple and its existence is not at risk, thereby allowing the competent administrative agency to decide whether it is more easily.

[5] The case holding that, in light of the circumstances of the Korean Traditional Temples Preservation Act as amended, it is unnecessary to protect trust in the existence of the Traditional Temples Preservation Act prior to the amendment, and thus, it cannot be refused on the ground that "the approval of the representative of its representative body is omitted" is applied to the application of the amended Korean Traditional Temple Preservation Act for the permission of transfer of land being used as a part of the boundaries of the traditional Buddhist Temples, because it is deemed that there is no need to protect

[1] [1] Article 6 of the Preservation of Traditional Buddhist Temples Act, Article 1 of the Administrative Litigation Act / [2] Article 6 of the Preservation of Traditional Buddhist Temples Act, Article 1 of the Administrative Litigation Act / [3] Article 1 of the Administrative Litigation Act / [4] Article 6 (1) of the Preservation of Traditional Buddhist Temples Act, Article 1 of the Administrative Litigation Act / [5] Article 6 (1) of the Preservation of Traditional Buddhist Temples Act (amended by Act No. 5320 of April 10, 197), Article 6 (1) of the Preservation of Traditional Buddhist Temples Act, Article 1 of the Administrative Litigation Act [general]

[1] Supreme Court Decision 87Nu640 decided Oct. 28, 1987 (Gong1987, 1825) / [3] Supreme Court Decision 97Nu13818 decided Mar. 10, 200 (Gong200Sang, 973)

Han-jin et al. (Attorney Han-Gyeong et al., Counsel for the defendant-appellant)

The Minister of Culture and Tourism

1. The defendant's rejection disposition against the plaintiffs on March 4, 200 is revoked.

2. The costs of lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Details of the disposition;

[Ground of Recognition] Facts without dispute, Gap evidence 1-1, 2, 3, Gap evidence 2-1 through 5, Gap evidence 3, Gap evidence 5-1, 2, 3, Gap evidence 6, Gap evidence 7-1 through 5, Gap evidence 7-8, whole purport of oral argument

(a) On April 19, 1989, the foreign net Park Jong-sung purchased "the land of this case was divided into three parcels of land on October 9, 1993; 1,713 square meters prior to 311, prior to 311, prior to 226 square meters prior to 311-1, prior to 311-2, prior to 311, prior to 310 square meters (the land of this case was then divided into three parcels of land; hereinafter the above three parcels of land was referred to as "the land of this case")" against Suwon District Court of Seoul, Seoul, claiming that "the implementation of the procedure for transfer registration of ownership and the implementation of the procedure for transfer of land and the implementation of the procedure for application for transfer registration under the former Traditional Temple Preservation Act (amended by Act No. 5320, Apr. 10, 1997; hereinafter referred to as the "former Traditional Temple Preservation Act").

B.The latter companies filed an appeal and a final appeal in connection with the above civil procedure, but the Seoul High Court dismissed the appeal of the Suwon on March 17, 1994, and the Supreme Court dismissed the appeal of the Suwon on April 21, 1995, and the above judgment became final and conclusive as of April 21, 1995. The above final and conclusive judgment is in effect on April 21, 1995. The above final and conclusive judgment carries out the procedure of filing an application for the permission of the permitting agency for the transfer of ownership for the transfer of ownership for the land of this case on March 20, 1987, for the transfer of ownership for sale as of March 20, 1987. The Suwon company receives and redeems 37,500,000 won from the Park Sung-sung and received from the Park Sung-sung, and ordered the transfer of ownership for the land of this case on March 20, 1987."

C.On May 22, 1995, Park Sung-sung applied for the permission of the transfer of the land of this case to the defendant (the Minister of Culture and Sports under the Government Organization Act prior to the amendment by Act No. 5529 of Feb. 28, 1998, and the organizational name has been changed to the Minister of Culture and Sports after the amendment) on behalf of the State Council on behalf of the State Council in lieu of the State Council. However, on June 1, 1995, the defendant issued a disposition rejecting the above application on the ground that "the approval of the representative of the religious organization is not attached to the above application" (hereinafter referred to as "the original disposition of this case").

D. This Court filed an administrative suit against the defendant against the Seoul High Court for the cancellation of the original disposition in this case. On July 23, 1997, the above court dismissed the defendant's appeal on the ground that "the original disposition in this case on the ground that the letter of approval was not accompanied by the letter of approval of the representative of the end-wave organization" was unlawful, and that the transfer of the land in this case is not in line with the original purpose of the inspection in this case and is not likely to endanger the existence of the inspection by the transfer of the land in this case, and that the transfer of the land in this case could not be at risk of endangering the inspection." Thereafter, the defendant appealed against the above judgment and appealed to the Supreme Court as 97Nu13474 on November 26, 199, and the Supreme Court dismissed the defendant's appeal on the ground that "the original disposition in this case on the ground that the notice of approval was unlawful."

E. After the above administrative litigation died on February 3, 1998 when the above administrative litigation was pending, the plaintiffs succeeded to the status of Park Jong-sung pursuant to Article 10 (1) of the Administrative Procedures Act. Among the plaintiffs, the plaintiffs' attorney-at-law of this case who represented the plaintiffs' long-term, Park Jung-young and Park Jung-young urged the defendant to grant permission of real estate transfer in accordance with the purport of the above final judgment against the defendant on December 31, 1999. Accordingly, the defendant urged on March 4, 200 that "the transfer of real estate as of May 22, 1995, the transfer of real estate as of May 22, 1995 is without any explanation as to whether the transfer of the real estate in question conforms with the original purpose of the Suwon National Assembly, and that (the proviso of Article 6 (1) of the Preservation of Traditional Temples Act), the above disposition of this case against the plaintiff's heir's succession to the status of the plaintiff (the plaintiff's attorney-at-law of this case was urgeded by the plaintiff.).

2. Whether the instant disposition is lawful

A. Summary of the parties' assertion

(1) The defendant's assertion

(A) The data submitted by the Plaintiff alone cannot only regard the transfer of the instant land as the disposal of the property that accords with the inherent purpose of the State Council, and there is no other evidence to find that the transfer of the instant land conforms to the inspection’s inherent purpose. Accordingly, the instant disposition is lawful.

(B) As the Korean Traditional Temple Preservation Act was amended by Act No. 5320 on Apr. 10, 1997, the proviso of Article 6(1) is newly established, and the proviso of Article 6(1) provides that "if the Korean Traditional Temple intends to engage in an act referred to in subparagraph 2, a letter of approval of the representative of the delegation body to which he belongs shall be attached." In the case where the chief Buddhist Temples lend, transfer, or offer a security to movable property or any real estate as determined by the Presidential Decree, an application for permission shall be accompanied by a letter of approval of the representative of the delegation body to which he belongs. Therefore, the application for permission for transfer

(2) The plaintiff's assertion

(A) The grounds for the instant disposition by the Defendant are the grounds for deeming that all of the grounds for the instant disposition had been based on the previous final and conclusive judgment, and thus, the instant disposition is unlawful.

(B)The provisions of the proviso of Article 6 (1) of the current Traditional Temple Preservation Act do not stipulate a new permit or effective requirement for the disposal of the temple property, but merely stipulate one procedural requirement for the submission of approval for important transactions, such as transfer of the temple property and provision of security. In addition, in the case of this case, if an application for permission for the registration of transfer of ownership and the right to request the execution of the procedure for the disposal of the temple property is confirmed by a final and conclusive judgment in civil procedure as to the transfer of the temple property, and the application for permission for the registration of transfer of ownership and the right to request the execution of the procedure for the disposal of the temple property is confirmed, it is virtually impossible to attach the written approval to the representative of the inspection, who is the party to the dispute. The request for the attachment of the written approval is unreasonably limited without the grounds for the exercise of the right by the applicant, and thus it is unconstitutional if the above proviso provision is interpreted as an essential requirement for the application for permission. Therefore, if the previous application form and the written approval are not specified as the requirement for the approval.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination on the part on the grounds for the disposition

(1) The premise for the determination

The order to obtain permission from an administrative agency for the disposal of a temple property is to protect and maintain the temple property so that it can achieve the original purpose of the inspection and contribute to the development of culture (see Supreme Court Decision 87Nu640, Oct. 28, 1987). Thus, in determining which competent administrative agency grants permission for the disposal of a temple property, it shall be based on whether the disposition of the temple property conforms to the above purport.

(2) Facts of recognition

[Ground of recognition] Each of the evidence set forth above, Gap evidence set forth in subparagraph 9-9, Gap evidence set forth in subparagraph 9-10, 16, 23, 26, 27, 28, 29, 35, and 46, and the whole purport of the pleading

(a)The Park Sung-sung entered into a contract on March 20, 1987 with the seller to sell the instant land owned by the Susung on the 180,000,000 won with the purchaser's name as a inquiree, and with the buyer's name as the buyer's name, with the sale certificate, the certificate of employment, and all documents with the permission of the competent authorities, and at the same time to receive the balance. Since Park Sung-sung paid 142,50,000,000 won in total to the seller as down payment and intermediate payment pursuant to the above sale contract.

(B)However, as the public knowledge of the State Council refused to perform the above sales contract with the Park Sung-sung, it brought a civil action against the State Council on April 19, 1989. At the time, the Non-party Shin Sung-sung, the public knowledge of the State Council, prepared a letter of acceptance to the effect that he accepts a claim in the above civil action around December 1989, and even around January 8, 1990, prepared a letter of acceptance to the same effect as above on the condition that he will want 10,000,000 won after the judgment of Park Sung-sung was made. In this case, the judgment of the above civil action (Seoul High Court Decision 92Na68105 delivered on March 17, 1994, "the above judgment of the State Council" should be deemed to have been ratified for the reason that it was concluded without limited authority.

(c)On the other hand, on the other hand, on the ground that around March 22, 198, the several countries applied for the transfer permission to dispose of the instant land for the purpose of preparing the construction fund for the school building and the repair cost of the temple building. The Mayor of Seoul Special Metropolitan City had cancelled the said transfer permission on the ground that "the State Council failed to comply with the conditions of the transfer permission, such as the joint deposit of the sale price and the disposal by the open competitive bidding method, among the above conditions of the permission", on the ground that "the State Council did not comply with the said conditions of the permission."

(라)이 사건 토지는 박성현이 수국사와 사이에 위 매매계약을 체결할 당시부터 일반주거지역에 속하고 있었던 토지로서, 원래 그 지상에는 특별한 경내건물이 건립되어 있지도 아니하였고, 불교행사를 위한 토지도 아니었으며, 단지 경내 밖의 텃밭으로 이용되어 왔을 뿐이었다. 그런데 수국사는 박성현과의 민사소송이 계속중이던 1992.경부터 이 사건 토지의 외곽으로 블록 담장과 출입문을 설치하여 그 안의 토지를 주차장으로 이용하기 시작하였고, 1994.경에는 다른 곳에 있던 수국사 역사비를 이 사건 토지의 북쪽 경계에 일부 걸치게끔 옮겨 두었다. 이후 수국사는 1995.경에 이르러 이 사건 토지의 경계 바로 서쪽에 약사여래불상을 건축하였고, 이 사건 토지보다 아래쪽에 있었던 원래의 출입문을 잠가 두고 이 사건 토지 위에 새로이 설치한 출입문을 주된 출입문으로 이용하기 시작하였으며, 이 사건 토지 위에 콘테이너로 된 간이종무소를 설치하였다. 그러나 수국사의 대웅전과 다른 법당, 요사채, 미륵불상 및 사찰광장 등 주요 참배장소는 여전히 이 사건 토지의 서쪽에 위치한 임야에 모두 위치하고 있으며, 참배객들이 사용할 수 있는 별도의 주차장 부지도 마련되어 있다.

(e)On the other hand, money (contracts and intermediate payments) paid by Park Sung-sung on the purchase of the land of this case was received by a limited period of time which was the general affairs of the State Council, but it was not revealed about the specific purpose of the purchase price, but the State Council has been created to a considerable extent after the conclusion of the sales contract for the land of this case.

(3) Determination

According to the above facts, the land of this case is used as part of the border of a veterinary company. However, although the land of this case is originally used as a garden unrelated to Buddhist rites, the land of this case is merely the land located at the end when comprehensively viewing the site of a veterinary association, ② even around around 1978, a veterinary association intended to dispose of the land of this case in order to cover the expenses for building and repairing the temple buildings, ③ the transfer of some of the cultural properties on the land of this case within the border of the original veterinary association, so it seems easy to transfer it to another place. ④ Even if the land of this case is transferred, the container used as a simple temple can be easily transferred or closed, and it seems difficult for the transferor to use the entrance and temple, which was used for the previous temple, and ⑤ It is difficult for the transferor to prove that the transfer of the land of this case can not be dangerous for the purpose of transferring the temple by taking account of the facts acknowledged earlier, and thus, it is difficult for the transferor to prove that the transfer of the land of this case can not interfere with the purpose of the inspection.

D. Determination on the grounds for disposition (C&C)

(1) The premise for the determination

In principle, an administrative disposition shall be based on the amended Act and subordinate statutes in force at the time of the disposition, unless otherwise specified in the transitional provision. However, in a case where the citizen’s trust in the existence of the preceding Act and subordinate statutes prior to the amendment is recognized as more worthy of protection than the public interest demand for the application of the amended Act and subordinate statutes, the application of the amended Act and subordinate statutes may be restricted to protect the people’s trust (see, e.g., Supreme Court Decision 97Nu13818, Mar. 10, 200).

(2) Determination:

Although the Korean Traditional Temple Preservation Act was amended by Act No. 5320 on April 10, 1997, and Article 6(1) of the Korean Traditional Temples Preservation Act was newly established with the proviso that "a letter of approval of the representative of the affiliated representative body shall be attached." However, the Addenda provides that "this Act shall enter into force on the date six months have elapsed since its promulgation," but it did not take any transitional measures following the amendment of the Act.

However, in the case of this case, ① since the Park Jong-sung, the decedent of the plaintiffs, was brought a civil lawsuit around April 1989, it was possible to file an application for the permission of transfer by subrogation of the deceased's chief public interest through the Supreme Court decision around April 1995, about six years after the plaintiffs filed a civil lawsuit. ② Even if Park Jong-sung's application for the permission of transfer was filed with the defendant around May 1995, it was subject to the disposition of refusal due to the defendant's illegal legal use, ③ The above disposition was revoked through the Supreme Court decision on April 10, 199, when the traditional Buddhist Temple Preservation Act was amended on April 10, 197, which was in progress, ② even though the issuance of the approval was not a requirement for the permission of transfer required by the law, ③ even if Park Sung-sung's application for the permission of transfer was not a requirement for the permission of transfer, it should be determined that the application of the proviso of Article 6 (1) of the former Traditional Temple Preservation Act should be attached to the application of this case.

Meanwhile, the purport of the proviso of Article 6(1) of the Korean Traditional Temple Preservation Act requires the submission of a letter of approval of the representative of a representative organization under his/her jurisdiction in the transfer of a temple property is to ensure that the competent administrative agency can easily determine whether the transfer of the relevant temple’s property contributes to the inherent purpose of the temple and the existence of the temple itself is not in danger. As such, it is merely to ensure that the competent administrative agency can make a decision more easily on whether to grant an application for transfer permission. Therefore, it is deemed that there is a superior need to protect the plaintiffs’ trust in the existence of the former Act than the public interest demand for the application of the amended Act without exception. Therefore, it cannot be denied on the ground that “the approval of the representative of the representative organization under its jurisdiction is omitted” by applying the amended Act

3. Conclusion

The plaintiffs' claims of this case are reasonable and acceptable.

Judges Lee Jae-sung (Presiding Judge)