Korea Land Compensation and Management Association (Attorney Kim Yong-ho, Counsel for the plaintiff-appellant)

Korea Vocational Ability Development Institute (Attorney Choi So-young, Counsel for defendant-appellant)

Korean Bar Association (Law Firm Cheongdam, Attorney Park Jong-woo, Counsel for defendant-appellant)

The Minister of Justice

Seoul Administrative Court Decision 2010Guhap16721 decided July 15, 2010

March 3, 2011

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. The total cost of the lawsuit (including the part arising from the supplementary participation and the participation of the administrative agency) shall be borne by the plaintiff.

1. Purport of claim

The defendant's rejection disposition against the plaintiff on August 27, 2008 is revoked.

2. Purport of appeal

The same shall apply to the order.

1. Details of the disposition;

The court's explanation on this part is the same as the reasoning stated in Paragraph 1 of the judgment of the court of first instance. Thus, this part is cited by Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) The Public Works Act maintains the principle of project operator compensation, and among them limits the trustee of compensation business to a compensation-specialized institution as stipulated in Article 81(1) of the Public Works Act, and thus, it is prohibited that a compensation manager, who has private qualifications under the Public Works Act, is entrusted with compensation business. However, since the Public Works Act does not prohibit the entrustment of compensation business, it does not itself, it does not prohibit the entrustment of compensation business. Therefore, even though there is no reason to refuse to apply for a private qualification registration concerning compensation business, the defendant has reached the remaining disposition bound by the opinion of the Ministry of Land, Transport

(2) In light of the fact that a private qualification is registered and operated in a field where only certain registered business operators and legal institutions may be entrusted with their duties under the individual laws, and that individual private qualification certificates are registered and operated in the field where a legal professional is located, refusal of registration on the ground that only the qualification of a business trustee under the Public Works Act is limited to the qualification of a compensation manager applied by the Plaintiff is without reasonable grounds.

(3) The Defendant issued the instant rejection disposition on the ground that the Plaintiff’s private qualification is related to the activities prohibited under the Public Works Act, and the Defendant’s assertion that the above private qualification constitutes an activity prohibited under the Attorney-at-Law Act, the Certified Judicial Scriveners Act, and the Administrative Justice Act cannot be added to the grounds for the instant rejection disposition.

(b) Related statutes;

The court's explanation on this part is identical to the entry of "related Acts and subordinate statutes" in the judgment of the court of first instance. Thus, this part is acceptable in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

C. Determination

(1) The Framework Act on Qualifications is classified into national qualifications established, managed and operated by the State in accordance with statutes and private qualifications established, managed and operated by any person other than the State, with respect to a qualification system, to secure diversity of qualification systems and promote the development of national vocational abilities by boosting private qualifications, and any corporation, organization or individual other than the State may establish, manage and operate a private qualification unless it is not an area falling under any of the subparagraphs of Article 17(1) of the Framework Act on Qualifications, but it shall be registered with a registration management agency (defendant) designated by the Minister of Education, Science and Technology (Article 17), as prescribed by Presidential Decree. Article 23 of the Enforcement Decree of the Framework Act on Qualifications may verify whether a private qualification under each subparagraph of Article 17(1) of the Framework Act on Qualifications is prohibited by the head of the relevant central administrative agency before the registration management agency determines whether to be registered, and if not, it shall be entered in the registration ledger

(2) Meanwhile, Article 61 of the Public Works Act provides that a project operator shall compensate for any loss sustained by the landowner or person concerned due to the acquisition or use of the land, etc. required for the public works. Article 81 provides that “Any project operator may entrust the affairs concerning the compensation or relocation measures to the following institutions” under subparagraph 1, subparagraph 2 provides that “any local government” under Articles 4 through 6 of the Act on the Management of Public Institutions or any local public corporation under the Local Public Enterprises which has actual record or expertise in the compensation affairs and is prescribed by Presidential Decree as a public corporation under the Local Public Enterprises. Paragraph (2) provides that the matters necessary for the scope of the affairs to be performed at the time of entrustment under the provisions of paragraph (1) and fees shall be prescribed by Presidential Decree; Article 43 (1) of the Enforcement Decree of the Public Works Act provides that the aforementioned matters shall be specifically listed in subparagraphs 1 through 7, and Article 81 (2) provides that any project operator may entrust any public institution designated by Presidential Decree with the investigation and inspection of the ownership and the disposal of the land (excluding the disposal of the land).

(3) However, in full view of the aforementioned facts and the statement in Gap evidence No. 1, the duty of a compensation manager to be newly established, managed and operated by the plaintiff is as follows: (i) the duty of establishing, publicly announcing, and inspecting a compensation plan; (ii) the inspection of public records, such as land and building registers; (iii) the investigation of matters concerning ownership and rights other than ownership of land, etc.; (iv) the investigation of matters of land and goods protocols; (v) the investigation of the compensation of land, etc. outside the land and goods protocols; (vi) the investigation of the basic investigation of business, agriculture, fishery, and mining losses; (viii) the calculation of compensation (excluding appraisal); (ix) the conclusion of a contract and the payment of compensation; (iii) the duty of civil petition and payment of compensation; (iv) the duty of establishing and implementing relocation measures; and (iii) the duty of verification of compensation for land, etc.; and (iv) the duty of verification of the scope of the duty of a private qualification manager under the Civil Service Act; and (v) the duty of verification of compensation is recognized as consistent with the scope of the duty of the defendant’s.

(4) According to the above facts, the Plaintiff’s qualification to be newly established, managed and operated is the duty of prohibiting the entrustment to the private sector by the Public Works Act and the Enforcement Decree thereof. ① Even though the Plaintiff’s acquisition of a private qualification to be newly established, is not prohibited by the Public Works Act, it can be deemed that the Plaintiff’s qualification to be a “related field” under Article 17(1)1 of the Framework Act on Qualifications constitutes “an act prohibited by other Acts and subordinate statutes” and “related field”. ② It is not meaningful to recognize the qualification of a private qualification manager that is not premised on the performance of duties and the qualification that is not premised on the performance of duties (the Plaintiff’s qualification as a manager may contribute to the improvement of the capacity of a specialized institution for compensation if the Plaintiff is engaged in the duty of compensation at a specialized institution for compensation, but the Plaintiff’s qualification to be newly established and operated by the specialized institution for compensation should not be limited to the Plaintiff’s qualification to the extent that it is necessary for the specialized institution for compensation to manage and operate the private qualification in accordance with the Act.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and since the judgment of the court of first instance is unfair with different conclusions, the defendant's appeal is accepted, and the judgment of the court of first instance is revoked and the plaintiff's claim is dismissed as per Disposition.

Judges Cho Jae-ho (Presiding Judge)