[1] The legal nature of the act of imposing the receiving fee (=exercise of public power) and the nature of the lawsuit disputing the right to collect the receiving fee (=party suit in public law)

[2] In a case where a civil suit is filed by misunderstanding an administrative case as a civil case, the measures to be taken by the court of the lawsuit

[1] Article 66 (3) of the former Broadcasting Act (amended by Act No. 8867 of Feb. 29, 2008) (see current Article 66 (3)), Article 3 subparagraph 2 of the Administrative Litigation Act / [2] Article 7 of the Administrative Litigation Act, Article 34 (1) of the Civil Procedure Act

[2] Supreme Court Decision 95Da28960 delivered on May 30, 1997 (Gong1997Ha, 1997)

Plaintiff 1 and 9 others (Attorneys Hwang Woo et al., Counsel for the plaintiff-appellant)

Korea Electric Power Corporation (Law Firm Sami General Law Office, Attorneys Kim Young-soo et al., Counsel for the defendant-appellant)

Korea Broadcasting System (Law Firm Sami General Law Office, Attorneys Kim Young-soo et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2006Na89895 decided March 22, 2007

The judgment of the court of first instance is reversed, and the judgment is revoked. The case is transferred to the Seoul Administrative Court.

Judgment ex officio is made.

Receiving fees for television broadcasts (hereinafter referred to as "receiving fees") fall under the special charges imposed on a specific group possessing television receiver in order to meet the funds for specific public services called public broadcasting business (see, e.g., Constitutional Court Order 98Hun-Ba70, May 27, 199; Constitutional Court Order 2006Hun-Ba70, Feb. 28, 2008). Meanwhile, when the designated person collects receiving fees, the Defendant Intervenor may entrust his/her designated person with the collection of receiving fees (Article 67(2) of the Broadcasting Act); when the designated person collects receiving fees, it may be conducted in combination with the designated person’s act of notifying its unique duties (Article 43(2) of the Enforcement Decree of the Broadcasting Act).

The plaintiffs are seeking confirmation that the defendant does not have the right to make integrated notification and collection of receiving fees for the electrical fee notice to the plaintiffs through civil procedure.

However, in light of the legal nature of receiving fees, the content of the right to compulsory collection of receiving fees by the Defendant’s Intervenor [Article 66(3) of the former Broadcasting Act (amended by Act No. 8867 of Feb. 29, 2008)], etc., it constitutes an act of imposing receiving fees as an exercise of public authority. Thus, the instant lawsuit disputing whether the Defendant is entitled to collect receiving fees by combining the Defendant’s Intervenor’s act of notifying the collection of receiving fees with being entrusted by the Defendant’s Intervenor’s Intervenor’s act of notifying the collection of receiving fees with the authority to collect receiving fees by combining it with the act of notifying its unique duties, is not

Nevertheless, the court below affirmed the judgment of the court of first instance which judged on the ground that the lawsuit of this case constitutes a civil lawsuit concerning legal relations under private law. In so doing, the court below erred by misapprehending the legal principles on administrative disposition or party litigation under public law, thereby violating the provisions on exclusive jurisdiction.

On the other hand, Article 7 of the Administrative Litigation Act provides that where an administrative litigation has been filed in a court where the court at a different level without the plaintiff's intention or gross negligence, it shall be transferred to the competent court by applying Article 34 (1) of the Civil Procedure Act, and it is desirable in terms of the relief of rights or the economy of litigation to transfer a case to the competent court rather than to dismiss a lawsuit for violation of jurisdiction on account of its illegality. Thus, where the plaintiff files a civil lawsuit without any intention or gross negligence, and where the plaintiff does not have jurisdiction over the administrative litigation, the court of lawsuit must transfer the case to the competent court, not to dismiss it as an unlawful lawsuit, unless it is clearly obvious that the lawsuit in question has already been filed as an administrative litigation, such as the procedure and period for prior trial as an administrative litigation, or the absence of a disposition subject to an administrative litigation, etc. (see, e.g., Supreme Court Decision 95Da28960, May 30, 197).

Therefore, the judgment of the court of first instance is reversed ex officio, and the case is transferred to the competent court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Dai-hee (Presiding Justice)