207Guhap26315 Disposition rejecting the extension of the period of free use

000 Stock Company

Seoul Special Metropolitan City Mayor

May 1, 2008

June 19, 2008

1. The defendant's rejection disposition against the plaintiff on January 9, 2006 against the plaintiff on December 8, 2004 regarding the extension of the temporary use period, which is the alteration (extension) of the city planning facilities (parking the city planning facilities), and the rejection disposition against the plaintiff on November 10, 206 against the plaintiff on August 21, 2006 on August 21, 2006 concerning the extension of the non-use period under the permission disposition for use of the underground parking lot for 00 sports grounds, respectively.

2. The costs of lawsuit are assessed against the defendant.

The order is as set forth in the text.

1. Basic facts

(a) The lapse of the initial authorization and disposition;

(1) Under a plan to attract private capital and construct a 's underground and ground parking lot' of the project site of this case, the Defendant was selected as a business operator on June 13, 1990 by open recruitment.

(2) On June 11, 1991, the defendant announced the decision of the urban planning facility (parking lot) that the project site of this case (non-high: 00 playgrounds and roads) shall be the parking lot which is the urban planning facility of the Do, and the plaintiff was permitted to implement the urban planning project (construction of parking lot) under Article 24 of the former Urban Planning Act and Article 20 of the Parking Lot Act for the construction of the underground parking lot of the 00 playground on June 29, 1991.

(3) The project period under the above urban planning project (construction) is from July 1991 to June 1993, and shall contribute all the facilities to Seoul Special Metropolitan City within one month from the date of completion of the parking lot and the Plaintiff’s free use period for the completed underground parking lot shall be 20 years.

Added was added.

(4) On June 1993, the Plaintiff completed and donated the 6th underground floor, the 1st ground floor, the 48th floor area, the 49m area, the 1, the 206th parking lot (hereinafter “existing parking lot”) around 1993, and received free permission to use public property from the Defendant for a fixed period from July 9, 1993 to July 8, 2013 under the former Local Finance Act (parking 9117-1121).

(5) The Plaintiff is anticipated to be unable to recover the investment cost due to low operational efficiency of the existing parking lot. On January 8, 2000, the Plaintiff filed an application with the Defendant for authorization for the change of the project implementation plan of urban planning facilities (parking lot) with the purport of extending the facility of the size of 5 stories above ground for the use of the existing parking lot for commercial buildings, etc. on the ground of the existing parking lot.

(6) The Defendant recognized that the Plaintiff’s existing parking lot construction need to be compensated for the Plaintiff’s investment expenses. Of the extended facilities, some of the Defendant plans to use it as a fashion center for the activation of the right to use the Seodaemun-gu and South Seodaemun-gu World Markets (hereinafter “original authorization disposition”) after consultation with the Plaintiff on May 9, 200, the period between the implementation period and May 200, and the period between the implementation period. The extended facilities shall be donated to the Plaintiff on May 9, 200, and the entire four and five floors shall be free of charge by the Seoul Special Metropolitan City, and the Plaintiff may lease the commercial buildings of the extended facilities to recover the investment expenses, other than the condition that the implementation plan is approved (hereinafter “the initial authorization disposition”).

(b) Cancellation of the initial authorization or disposition and an administrative appeal on four occasions;

(1) On March 15, 2001, in consideration of the comprehensive urban planning in the Dongdaemun-gu area, the Defendant revoked the initial authorization disposition on the ground that there is a consensus that it is desirable for the Defendant to reserve to the open space on the ground of the existing parking lot to the open space, and there is a civil petition that actively objects to the extension of the existing parking lot, and if the building is constructed and operated on the ground of the parking lot, there is a petition that actively objects to the extension of the facilities on the ground of the parking lot, and that there is a high possibility that the regional overpopulated and the public interest may be significantly harmed.

(2) On May 8, 2001, upon the Plaintiff’s filing of a civil petition for grievance, the National Ombudsman recommended the Defendant to revoke the initial authorization disposition, but the Defendant silented it. On May 18, 2001, the Plaintiff filed an administrative appeal against the Defendant seeking revocation of the initial authorization disposition, and filed a civil petition or private interest prosecution before the initial authorization disposition, and not before the initial authorization disposition, and thus, it is recognized by the Defendant itself as having contributed to the revitalization of the original Seodaemun-gu and South Seodaemun-gu fashion right due to the extension of facilities based on the initial authorization disposition. The Plaintiff also accepted the need to preserve the original authorization disposition, thereby citing the Plaintiff’s claim for the first authorization disposition that continued to maintain the validity of the initial authorization disposition.

(3) On October 15, 2001, the defendant rejected the administrative appeal and rendered a disposition for modification of urban planning facilities (parking lot) with the content of the urban planning facilities (parking lot) concerning the project site of this case on June 11, 1991 in accordance with the decision of the city planning facilities (parking lot).

(4) On January 12, 2002, the Plaintiff filed a trial seeking the revocation of the above urban planning facility (parking facility) alteration on June 18, 2002, and received a ruling citing the Plaintiff’s claim on the ground that the above urban planning facility (parking facility) alteration disposition constitutes an act of nullifyinging the effect of the original approval revocation disposition on September 3, 2001, which actually revoked the original approval revocation disposition, indirectly or indirectly, by avoiding bypassing. The scope of parking facility was originally “00 playgrounds and roads” on the ground that there are no special reasons or special circumstances that “within 00 playgrounds and roads” did not exist.

(5) When the Plaintiff submitted an application for deliberation on a construction plan to the Defendant to continue the implementation of the project, the Defendant again rejected the deliberation on the construction plan on March 11, 2003 in order to prevent the Plaintiff from extending its facilities.

(6) On March 26, 2003, the Plaintiff filed an administrative appeal seeking the revocation of the disposition of refusal to deliberate on the above building plan. On August 12, 2003, the Plaintiff, if the pertinent administrative agency refuses to present the building plan for which the application for deliberation on the building plan was filed to the appellate court of the Building Committee, is practically impossible to proceed with the following procedures, and substantial results in the same effect as the final rejection of the application for the building permit. Thus, unless it is objectively apparent that the construction of the pertinent building is not permitted under the related Acts and subordinate statutes, the pertinent administrative agency should first submit the building plan to the Building Committee for deliberation, and it cannot be concluded that the building plan applied for deliberation is within the scope not clearly permitted under the relevant Acts and subordinate statutes. Therefore, the Plaintiff received a ruling citing the Plaintiff’s claim on the ground that the disposition rejecting the application for deliberation on the building plan was unlawful.

(7) On March 31, 2003, the Defendant decided to revise urban planning facilities to include part of the instant project site into a road site for the purpose of preventing the Plaintiff from extending the facilities. Accordingly, on December 2, 2003, the Plaintiff filed an application for the authorization of the implementation plan to reduce the total floor area from 17, 337 to 17, 025 square meters by excluding the part of the land incorporated into the road site from the plan for expanding the facilities originally authorized to the Defendant on December 2, 2003 without any delay. However, the Defendant rejected the application on March 5, 2004 on the ground that the use of the building does not conform to the relevant provisions.

(8) On March 23, 2004, the Plaintiff filed an administrative adjudication seeking revocation of the above return disposition and authorization of the modification of implementation plan, and received a ruling to accept the Plaintiff’s claim on August 16, 2004, on the ground that the contents of the Plaintiff’s application do not intend to install new and additional urban planning facilities on the instant project site, but reduce the scale of the already authorized urban planning facilities, and it was intended to respect the Defendant’s alteration of urban planning facilities (road) and to revise the project in the direction corresponding thereto. The return of the plan is nothing more than to indirectly and indirectly avoid the purpose of the adjudication cited by the person on September 3, 2001 and the person on June 18, 2002, thereby citing the Plaintiff’s claim.

C. Approval of change in the instant case, Plaintiff’s application for extension of the free use period, and Plaintiff’s refusal disposition and appeal of this case

(1) On December 8, 2004, upon the notice of the decision on the fourth administrative appeal, the Defendant issued a permit to change the project implementation plan of the urban planning facility (the main vice head) (hereinafter referred to as the “instant permit for change”). Article 14 of the condition of the authorization provides that “the period of use of the extended ground facilities is determined in accordance with the provisions of Article 2 of the condition of the permit for free use of the underground parking lot (parking 91117-11111, 1121, 13 September 13, 1993) for the extended ground parking lot free of charge (parking 9117-121, 1993)” as set forth in paragraph (4) of the above subparagraph (a) of the above paragraph, Article 2 of the condition of the permit for free use (parking 9117-1121) shall be from July 9, 193 to July 8, 1993.

(2) If the period of use of the extended ground facilities until July 8, 2013, the Plaintiff filed an administrative appeal against the Defendant’s illegal and unfair disposition four times, and the period of actual free use is reduced for a period of four years and seven months from the date of the initial authorization disposition to the date of the modified authorization disposition, which was impossible to carry out the water extension of the facilities due to the occurrence of an administrative appeal against the Defendant’s illegal and unjust disposition, and the Plaintiff claimed that the Defendant applied for the extension of the period of free use in the instant modified authorization disposition to the Defendant on December 1, 2005, but the Defendant rejected it on January 9, 2006 (hereinafter “instant refusal disposition”).

(3) The plaintiff revoked the rejection disposition of this case No. 1 on April 3, 2006 and the modification disposition of this case is approved.

In February 8, 2018, a trial on performance of the duty, which seeks to extend the period of free use by February 8, 2018, was filed.

D. Application for extension of the period of free use by the Plaintiff, and the refusal of No. 2 of this case and filing an administrative appeal

(1) When the Plaintiff completed the extension of a facility and donated it to Seoul Special Metropolitan City on August 8, 2006, the Defendant set the permission for free use of the facilities extended on August 21, 2006 (hereinafter “instant permission for free use”) under Article 2 of the conditions of the said permission in the same manner as the permission for modification of the instant case (including the appurtenant facilities to the ground), the period of use “the period of use (including the extended period)” under Article 2(a) of the conditions of the permission for free use of the athletic parking lot for 000 sports grounds (parking 191117 - 1121, 193 September 13, 1993).

(2) On October 26, 2006, the Plaintiff filed an application with the Defendant for extension of the period of use of the instant gratuitous use permit, but the Defendant rejected the application on November 10, 2006 (hereinafter “instant refusal disposition”) (hereinafter “instant refusal disposition”) and rendered the instant refusal disposition in combination with the instant refusal disposition.

(3) On December 28, 2006, the Plaintiff filed an adjudication on the performance of duties seeking the revocation of the instant refusal disposition against the second rejection disposition and the extension of the period of use of the portion of the instant gratuitous use permit until February 8, 2018.

E. Grounds for appeal against the rejection disposition of this case

The above two administrative appeals cases were consolidated, and dismissed on April 16, 2007. The reasons for the ruling are as follows: in the event that the period for actual gratuitous use is shorter than the original permitted period due to the change of circumstances, whether an administrative agency should extend such period belongs to the discretion of the administrative agency; and in addition, compensation for damages arising from the change of circumstances attributable to the administrative agency's responsible cause, the extension of the period for free use may not be extended, in a case where the extension of the period for free use would interfere with the management of the relevant property, or where it is deemed necessary for public interest, the extension of the period for free use would not interfere with the management of the relevant property, or there is no specific and objective data to know whether the construction cost can be recovered within the already permitted period for free use, and it is difficult to view that the defendant's judgment, which set the period for free use of extended facilities, which are incidental facilities of the existing parking lot, was abused and abused.

[Grounds for recognition] Gap evidence 1-4, evidence 5-7-1, 2, 8-16, evidence 17-1-3, 19-25, evidence 26-1-4, evidence 27-1-3, evidence 27-3, evidence 28-1-3, evidence 32, evidence 33-1, and 2-2, each of the purport of the whole pleadings

2. Determination on this safety defense

A. Summary of the defense

The subsidiary officer of an administrative act may not be the subject of an administrative litigation independently except in the case of bearing the burden. This purpose is to prevent unreasonable consequences that force the administrative act that is not infinite against the will of the administrative agency by cancelling only the vice officer in a lawsuit filed against the vice officer. Thus, the same shall apply to the case where the vice officer seeks the revocation of the vice officer, as well as to the case where the vice officer seeks the alteration of the vice officer, or the case where the vice officer seeks the extension of the period of use of the vice officer, such as the case of this case, and seeks the revocation of the disposition of refusal. Accordingly, the lawsuit of this case is unlawful as it is against the vice officer who cannot be independently different from the administrative litigation

B. Determination

The period of use in the disposition of permission for the use of public property cannot be considered separately from the administrative act of this case, which is an important element of the administrative act. Thus, in principle, it cannot be viewed as an object of administrative litigation independently. However, when the above facts and the grounds for the plaintiff's claim are combined, the lawsuit of this case is not a lawsuit seeking cancellation or change of the period of use as a separate object from the disposition of permission for the use of this case and the disposition of permission for the free use of this case, but a lawsuit of this case is not a lawsuit seeking cancellation or change of the period of use as a separate object of the disposition of this case, which was an important premise of the disposition of the disposition of this case on the whole disposition of this case on the ground of change of circumstances that occurred after the illegal and unfair follow-up disposition of the disposition of this case, etc. of the disposition of this case, the period of use of the plaintiff's refusal to grant permission for the use of construction expenses, and eventually, it cannot be said that the defendant's refusal to grant permission for the change of the period of use of this case is unlawful.

3. Whether the rejection disposition of this case is legitimate

A. The plaintiff's assertion

(1) Violation of the undertaking

The Defendant intended to guarantee the free use period of 20 years from the time of donation including the facilities extended on the ground of the future at the time of recruitment of existing parking lot construction and operation operators. The original authorization disposition is set up until July 8, 2013 on the premise that the Plaintiff’s accumulation of deficit as a result of the operation of the existing parking lot, unlike the example at the time of donation, is preserving deficit with profits, such as commercial lease, on the premise that the period of free use was set up until July 8, 201. The establishment of the above period of use means the Defendant’s promise that guarantees the period of use of approximately 12 years and two months from May 201 to July 8, 2013, which was set at the time of completion of the extension work at the initial authorization disposition, for a prolonged period of 2 years and 12 months from the initial refusal disposition, based on the Plaintiff’s trust and 2 months from the expiration of 7 years from the date of extension of the existing parking lot by the Defendant’s wrongful administrative disposition.

(2) Violation of the Public Property and Commodity Management Act

According to Article 21 (2) of the Public Property and Commodity Management Act, where a person who has obtained permission to use and make profits from public property receives a restriction on the use of the property concerned due to reasons attributable to the local government concerned, the previous permission period may be renewed. This provision is intended to eliminate the disadvantages of beneficiaries due to reasons attributable to the administrative agency, and it should be inferredly applied to the approval of the change in this case and the extension of the period of use added to the permission of gratuitous use, and thus, the refusal disposition of this case is unlawful.

(3) Deviation and abuse of discretionary power

In comparison with the 12-year and 2-month use period at the time of the original authorization disposition, the use period at the time of the original authorization disposition is merely 7-year and 7-month, and the defendant gains the expectation of the plaintiff while the defendant gains the profit from the return of the above amount. The reduction of the use period is entirely based on the defendant's responsible reasons for the reduction of the use period after 4-7 months from the date of the original authorization disposition. If the plaintiff uses the facilities extended only during the use period at the time of the original authorization disposition, it is impossible to achieve the objective of the collection of the construction cost, which is the premise of the original authorization disposition, and the public interest infringed upon by the extension of the use period, cannot be said to be a large amount. In light of the above, the rejection disposition was unlawful even if the extension of the use period belongs to the defendant's discretion, and thus, it is against the above disposition of rejection for a considerable period of up to 4-year and 7 months.

(4) Violation of the obligation to renew the service period

If the deadline attached to the permission is unreasonably short due to the nature of the permitted business, it may be considered that the term of the permission itself is not the duration of the permission itself, but even after the expiration of the period by deeming it as the duration of the conditions of the permission itself, and cannot refuse the permission itself. In light of the substance and nature of the business that the Plaintiff collects expenses incurred by the long-term leasing business for the facilities constructed as urban planning facility business, it constitutes the duration of the conditions of the permission even between the period of use in the instant modified approval and the gratuitous use permission, and thus,

B. The defendant's assertion

(1) The delay in the Plaintiff’s business of expanding facilities is due to the fact that the Defendant, who caused illegal authorization due to an error in the interpretation of the legal provisions, made a disposition of revocation, etc. lawfully to correct the illegal authorization, even though he/she had made a decision favorable to the Plaintiff in four administrative trials, but it reached a wrong conclusion in the direction that the ruling authority excluded the public interest and protects the Plaintiff’s interest during the administrative appeal process. Accordingly, it cannot be said that the Defendant is liable for the delay in the business of expanding facilities, and thus, the application for extension of the period of use cannot be accepted.

(2) This case’s modification disposition is not an implementation plan of a new urban planning project, but a modification of the contents of the first approval disposition on June 29, 1991, which was a prior disposition, regarding the business for which the authorization of the existing parking lot implementation plan was completed, and therefore, the conditions for authorization on the period of use are bound to follow the preceding disposition. The period needed by the Plaintiff to be dissatisfied with the Defendant’s disposition is merely the process of obtaining the authorization of the modification of the implementation plan for the extension of facilities. Thus, the period of use may not be extended in consideration of the period of use in order to guarantee the Plaintiff’s profit.

(3) Whether the period of free use is extended falls under the re-building of the Defendant, the managing authority of the existing parking lot and the extended facilities, and thus, it is not possible to calculate the appropriate period of free use for the recovery of the Plaintiff’s investment costs, and there is an error of law in determining the period of free use of the facilities extended, which are auxiliary facilities of the existing parking lot, the same as the period of free use of the existing parking lot, by the Defendant’

C. Determination

(1) The part rejecting the Plaintiff’s assertion

(A) The assertion of violation of the undertaking

Under the Administrative Law, an administrative agency's declaration of intent to commit a certain act or non-act in the future with its own restraint in relation to the public.

On June 29, 191, when the Defendant selected the Plaintiff as an existing parking lot construction business entity and carried out an urban planning project for the construction of the existing parking lot (construction of parking lots) on June 29, 191, setting the Plaintiff’s period of free use on the completed underground parking lot as 2020-year period for the Plaintiff’s period of free use of the parking lot on the completed underground parking lot is not the original administrative act itself, but it is difficult to view that the Defendant expressed in advance the Defendant’s intention that the period of free use for the facilities to be additionally extended last 20 years at the time of no plan for the extension. Moreover, the period of free use in the initial authorization disposition should be the original administrative act, and it cannot be deemed that the modification disposition was scheduled and that the period of free use should be the same as the initial disposition should be the same. Therefore, the Defendant’s refusal disposition is unlawful.

(B) Claim for violation of the Public Property and Commodity Management Act and the obligation to renew the period of use

The legal principle that if Article 21(2) of the Public Property and Commodity Management Act or Article 21(2) of the Public Property and Commodity Management Act provides for an excessive short period of time for the duration of the administrative act itself, it shall be deemed to cause the duration of conditions, not the duration of the administrative act itself, as the period of use under the original disposition expires and thus, at the request of renewal of the period of use, the administrative agency shall take into account all the circumstances at the time of expiration of the period of use, and shall reasonably exercise its discretionary power to protect the interests of the other party to the disposition. However, the instant disposition of refusal is a disposition of refusal on the expiration of the period of use, not the renewal of the permission granted at the point of six years or earlier, but the renewal of the period of use under the original disposition of use under the permit of modification

(2) Illegality of the instant refusal disposition

Whether to permit the use of and benefit from administrative property under the Public Property and Commodity Management Act or the application for the extension of the period thereof shall, in principle, be subject to the discretionary action of the office of administration. However, if it is deemed to seriously deviate from the limit of discretion in light of statutes or cooking, or if it is deemed to have the discretion in violation of the purpose given by the law

In light of the facts acknowledged above and the overall circumstances revealed in the argument of this case, the rejection disposition of this case in relation to the Plaintiff’s application for extension of the period of free use, which is unlawful by deviating from and abusing discretion, should be revoked.

(A) The principle of trust and good faith is one of the general principles of the law applied regardless of public and private law, and administrative agencies are obligated to faithfully and faithfully perform their duties. However, in this case, a series of administrative dispositions taken by the Defendant from the initial authorization disposition to the original order of this case, to the original order of this case, without any reasonable ground, are illegal dispositions made by the Defendant to either limit the business of this case, or to circumvent the validity of the cited ruling of the ruling of this case by the ruling authority for four times or more, and the Defendant still has no intention to take any reasonable measures to facilitate the business of this case through the ruling authority of this case. The Defendant’s behavior is the minimum faith against the Plaintiff, who is the other party to the disposition, and it is difficult to find out that there is little fear of objectively and reasonably comparing and balancing the Plaintiff’s private interests and public interests, and it can be said that the Defendant’s position and authority granted under the laws and regulations of this case has been abused without permission.

(B) At the time of the initial authorization disposition, the Defendant also recognized the validity of the motive that the Plaintiff intended to expand and operate an additional facility by means of preserving the enemy who occurred in the course of operating the existing parking lot, and determined the period of free use on February 8, 2013, which is the termination date of free use of the existing parking lot, under the judgment that it also accords with the public interest purpose of contributing to the activation of the fashion right in the Dongdaemun-gu and Southern-gu area.

(C) Even if the other party’s appeal procedure for the relief of rights is somewhat needed, the change of circumstances that require the alteration of the contents of the disposition alone cannot be said to have occurred. However, if the administrative agency intentionally makes an illegal and unfair disposition a considerable time to cope with it, and the result was reduced to the extent that the period of use set forth in the original disposition exceeds the possible limit, the administrative agency has a duty to extend the period of use to the reasonable extent.

In this case, the period for which the Defendant’s revocation of the initial authorization disposition would inevitably result in an inevitable period of time required for ordinary remedy procedures until around the time when the revocation was made by the administrative appeal adjudication, and the Defendant’s alteration disposition of urban planning facilities (parking lot) related to the project site of this case on October 15, 2001 on June 11, 1991 under “0 playgrounds and roads (parking lot) where the alteration disposition was made after the alteration disposition of urban planning facilities (parking lot) with the contents of “00 playgrounds and roads (parking lot) with the alteration disposition of urban planning facilities as to the alteration of the contents of the city planning facilities as to the site of this case was made on June 11, 1991, it is reasonable to extend the period between the Plaintiff’s free use period, at least for this period, since the Defendant’s intentional suspension of the Plaintiff’s facility extension business.

(D) If the period of free use by the original approval disposition was reduced due to the Defendant’s responsible cause, it would be clear that the Plaintiff would incur loss of profit that could have been gained during the reduced period. Therefore, the Defendant’s application for extension cannot be refused on the ground that it is sufficient to present an objective basis to achieve the objective of preserving the enemy arising from the operation of the existing parking lot even though the profits derived from the operation of the facility reduced and extended for the remaining period in order to refuse the application for extension at his own discretion (the original free use period for the Plaintiff’s proper preservation is 12 years and 2 months, and the period of the Defendant’s failure to use the facility due to the Defendant’s fault is 4 years and 7 months or longer, and the remaining period alone does not seem sufficient to preserve the enemy).

(E) It does not seem that the extension of the extended period of free use of the facilities would hinder the management of the property, and there is no reason to view that there is a need for public interest as to the period of infringing the Plaintiff’s trust and interest.

(3) Sub-decisions

Where a judgment revoking the instant refusal disposition becomes final and conclusive, the Defendant shall take a disposition against the application for extension of the period of free use prior to different cities in accordance with the purport of the judgment, and thus, it is reasonable to extend the period from February 8, 201, to September 15, 2001, where the Defendant made a decision for modification of urban planning facilities (parkings), as seen earlier, three years and 24 days from October 15, 2001, which was the Defendant’s disposition for modification of urban planning facilities, until December 8, 2004, when the ordinary appeal procedure was exceeded due to a reason attributable to the Defendant. Thus, barring any special circumstance, it is reasonable to extend the said period from February 8, 2013, which was the initial completion date of the authorization disposition, to September 1, 2016.

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.

For judges of the presiding judge;

Judges Adjusted or Managed

Judges Kang Jeong-hee