[1] The nature of permission for use and profit-making of administrative property

[2] Whether an act of refusing an application for permission to use or benefit from administrative property constitutes an administrative disposition subject to appeal litigation (affirmative)

[3] Whether a disposition is null and void in a case where a subsidiary organization, etc., which is not an original discretionary authority in violation of the discretionary decision provisions, merely a mere administrative disposition regulation inside the administrative authority, takes an administrative disposition under the name of the administrative authority that

[1] Permission by the administration agency of public property for the use and profit-making of the administrative property is not a private legal act conducted as a private economic entity, but an administrative disposition conducted by the administration agency in the superior position of the public authority, and constitutes a patent under the lecture where the right to use the administrative property is established.

[2] In light of the nature of the disposition of permission to use and profit from administrative property, it shall be deemed that the public property management authority has a right under the law or sound reasoning to apply for permission to use and profit from administrative property. Thus, the act of refusing to apply for permission to use and profit from administrative property constitutes

[3] As a result, the internal delegation of administrative authority is recognized as a case where the administrative authority, which is a legal disposition authority, actually allows its subsidiary bodies or subordinate administrative bodies to exercise its authority in order to promote the convenience of internal administration, and the law does not allow its delegation. Thus, even if a subsidiary body, etc., which is not the original discretionary authority, issued an administrative disposition in the name of the administrative authority that is the disposition authority, in violation of the discretionary decision provisions, which are merely the regulations for administrative affairs inside the administrative agency, it cannot be deemed as an invalidation disposition that

[1] Articles 82(1) and (2), and 83(1) of the Local Finance Act; Articles 1 [General Administrative Disposition] and 2 of the Administrative Litigation Act / [2] Articles 82(1) and (2), and 83(1) of the Local Finance Act; Articles 1 [General Administrative Disposition] and 2 of the Administrative Litigation Act / [3] Articles 1 [General Administrative Disposition] and 2 of the Administrative Litigation Act

[2] Supreme Court Decision 95Nu11023 delivered on February 13, 1996 (Gong1996Sang, 987) Supreme Court Decision 96Nu17325 delivered on April 11, 1997 (Gong1997Sang, 1472) / [3] Supreme Court Decision 89Nu671 delivered on September 12, 1989 (Gong1989, 1507), Supreme Court Decision 91Nu5792 delivered on April 24, 1992 (Gong192, 1731), Supreme Court Decision 94Nu6475 delivered on November 28, 195 (Gong196Sang, 251)

Plaintiff

The head of Taean Gun

Daejeon High Court Decision 96Gu1496 delivered on November 29, 1996

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, in this case where the plaintiff applied for permission to use the administrative property under the Local Finance Act for the maintenance of the public property among the administrative property under the Local Finance Act but the application is rejected, the court below determined that since the main sentence of Article 82(1) of the Local Finance Act provides that the plaintiff shall not use the administrative property for the purpose of lending it, there is no right to apply for a loan to the plaintiff, and even if Article 82(2) of the Local Finance Act provides that the administrative property may be used or profit-making within the extent that does not interfere with its use or purpose, Article 83(1) and 84 of the Local Finance Act provides that Article 82(2) of the Local Finance Act shall apply mutatis mutandis to the loan of the miscellaneous property, and that the act of lending the miscellaneous property is a private legal act conducted by the local government at an equal location with the other party as the private economic entity, the lawsuit of this case is unlawful, since the defendant's refusal

2. Permission by the administration agency of public property for use and profit-making of administrative property is not a private act conducted as a private economic entity, but an administrative disposition conducted by the administration agency as a superior position with public authority (see Supreme Court Decision 96Nu17325, Apr. 11, 1997). It constitutes a dives patent that establishes a right to use administrative property for a specific person. In light of the nature of the disposition of permission for use and profit-making of administrative property, it is deemed that the public property management agency has a right under laws and regulations or cooking to apply for permission for use and profit-making of administrative property, and thus, it also constitutes an administrative disposition.

Nevertheless, the court below judged that the lawsuit of this case is unlawful on the ground that the plaintiff did not have the right to file an application for use and profit-making of administrative property. Therefore, the court below erred by misapprehending the legal principles on rejection disposition.

However, the plaintiff is seeking confirmation of invalidity on the ground that the disposition of refusal of this case is an administrative disposition that is invalid by a person without authority, since the director of the finance division who is not the head of the Gun, who is the person with authority to make a decision by the resolution of the administrative affairs of Tae-gun

However, as a result, internal delegation of administrative power is recognized in cases where an administrative agency, which is a legal disposition authority, actually exercises its authority in order to promote the convenience of internal administration, and a law does not allow delegation (see, e.g., Supreme Court Decisions 91Nu5792, Apr. 24, 1992; 94Nu6475, Nov. 28, 1995). Thus, even if an administrative disposition was taken in the name of the administrative agency, which is a disposal authority, by a subsidiary agency, which is not its original discretionary authority, in violation of the discretionary provisions, merely the discretionary provisions for administrative affairs inside the permanent administrative agency, it cannot be said that the administrative disposition was invalid by a disposal authority.

In addition, according to the records, the permission to use public property under the Regulations on the Full-Time Handling of Administrative Affairs of Taean-gun is originally stipulated as the matters subject to the discretion of the head of the Gun, but the head of the finance division is designated as an acting person under the Regulations on the Full-time Handling of Administrative Affairs of Taean-gun and thus, it is apparent that the head of the finance division has issued the disposition of refusal in this case under the name of the defendant who is the person subject to the disposition as the full-time decision.

Therefore, the plaintiff's claim seeking confirmation of invalidity of the refusal disposition of this case is without merit, and the court below rejected the plaintiff's claim of this case without dismissing it, which is erroneous, but the judgment of the court below cannot be reversed and the judgment of dismissing the plaintiff's claim cannot be sentenced more disadvantageous to the plaintiff. Thus, the plaintiff's appeal is without merit.

3. Therefore, the appeal is dismissed, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Chocheon-sung (Presiding Justice)