[1] The case where a superior administrative agency violated the so-called "administrative rules or internal guidelines" issued by a subordinate administrative agency is unlawful

[2] In a case where the Mayor rejected an application for approval of a new dry storage facility business operator on the ground that he failed to meet the "to establish dry storage facilities per Si/Gun" criteria not specified in the "Guidelines for the Implementation of Agricultural and Forestry Projects" announced by the Ministry for Food, Agriculture, Forestry and Fisheries in 2008, the case holding that the disposition has no illegality of violating the principle of self-regulation of administration and the principle of trust protection of administrative rules, or of

[1] The so-called “administrative rules or internal guidelines” issued by a superior administrative agency to a subordinate administrative agency is generally effective only within the administrative organization, and do not have external binding force. Thus, an administrative disposition is not immediately unlawful merely because it violates such administrative rules. However, if the administrative rules, which are the rules at the exercise of discretionary power, are enforced as set forth therein and administrative practices are carried out in accordance with the principle of equality or the principle of protection of trust, an administrative agency is placed under self-detained in relation to the other party, and thus, barring any special circumstance, a disposition violating such rules is an illegal disposition that deviates from or abused from discretionary power, barring special circumstances.

[2] In a case where the Mayor rejected an application for approval of a new dry storage facility operator on the ground that he failed to meet the "to establish dry storage facilities per Si/Gun," which was not specified in the "Guidelines for the Implementation of Agricultural and Forestry Projects" announced by the Ministry for Food, Agriculture, Forestry and Fisheries in 2008, the case holding that there was no illegality of violating the principle of self-regulation of administration and the principle of trust protection related to administrative rules, or of deviation from or abuse of discretionary power, on the ground that the above guidelines were enforced and administrative practices were not implemented or their publication alone did not have any trust in protecting the applicant, and that there was no special circumstance to add the "1,00 years or more per unit of dry storage facilities for each Si/Gun," other than the above guidelines at the request of superior public interest, such as strengthening competitiveness in preparation for openization of rice market, etc.

[1] Article 4 (2) of the Administrative Procedures Act, Article 27 of the Administrative Litigation Act / [2] Article 4 (2) of the Administrative Procedures Act, Article 27 of the Administrative Litigation Act

[1] Supreme Court Decision 94Do2502 Decided May 23, 1995 (Gong1995Ha, 2302) Supreme Court Decision 2007Da88828, 8835 Decided March 26, 2009

Plaintiff (Attorney Han-chul et al., Counsel for the plaintiff-appellant)

Asan City (Attorney Choi Byung-jin et al., Counsel for the plaintiff-appellant)

Daejeon High Court Decision 2008Nu3096 Decided April 30, 2009

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

The grounds of appeal are examined.

The so-called administrative rules or internal guidelines, which are issued by a superior administrative agency to a subordinate administrative agency, concerning the interpretation and application of business rules or laws, are generally effective only within the administrative organization and do not have external binding force. Thus, the administrative disposition is not immediately unlawful solely on the ground that it violated such administrative disposition. However, if the administrative rules, which are the general rules for the exercise of discretionary power, are enforced so as to make administrative practices effective as set forth, the administrative agency is placed under self-detained in relation to the other party in accordance with the principle of equality or the principle of protection of trust. Thus, barring any special circumstance, a disposition in violation thereof is an illegal disposition that deviates from or abused from discretionary power as it violates the principle of equality or the principle of protection of trust (see Supreme Court Decision 2007Da8828, 8835, Mar. 26, 2009).

The lower court determined that the Defendant’s disposition of this case rejecting the Plaintiff’s application for recognition of the Plaintiff’s new DSC establishment without the instant guidelines was unlawful on the ground that the Plaintiff’s application for recognition, based on the following reasons: (a) a person wishing to be designated as a new rice processing complex (RPC) or a new drying storage facility (hereinafter “DSC”) upon the announcement by the Ministry of Agriculture and Forestry in 2008 by the Ministry of Agriculture and Forestry; and (b) a person failed to meet the requirements set forth in the instant guidelines; (c) a person was selected as a business operator when meeting the requirements set forth in the instant guidelines; and (d) the Plaintiff’s new DSC establishment of each Si/Gun, which did not meet the standards set forth in the instant guidelines, was unlawful as it did not comply with the principle of equality; and thus, (d) the Defendant’s disposition of this case’s deviation from the area of discretion at the time of the instant disposition, which did not comply with the instant guidelines.

However, according to the above legal principles and records, there is no evidence to prove that the guidelines of this case, which correspond to the administrative agency's internal rules of business affairs, have been enforced in accordance with their terms and conditions, and thus, administrative practices have been performed. Moreover, it is difficult to view that the publication of the guidelines of this case, alone, did not lead to the trust in the protection value that the Plaintiff may receive benefits, such as the provision of rice purchase funds, if the Plaintiff satisfies the requirements set forth in the guidelines of this case.

In addition, according to the records, the Ministry for Food, Agriculture, Forestry and Fisheries established 343 RPCs which can be processed en bloc from producers for the improvement of the structure and quality of rice distribution from 1991 to 2001. However, although rice cultivation area sharply decreases, as the increase in the import quantity of rice increases, it is currently promoting restructuring such as RPC integration from 2005, and it is trying to strengthen competitiveness against the opening of the rice market by integrating it into 200 RPCs by 203, and accordingly, it is difficult to consider the Plaintiff’s new RPC or DSSC business operator’s approval of new RPC or DSS business operator, and thus, it is difficult to secure the Plaintiff’s new PC or 204 PC’s total target area or 40 PC’s target area as its target area, and it is difficult to secure the Plaintiff’s new PC or 204 PC’s target area as its target area.

Nevertheless, the court below determined that the defendant's disposition of this case was an unlawful act of deviating from or abusing its discretion only on the grounds as stated in its holding. In this case, the court below erred by misapprehending the legal principles on the self-detention principle of administration and the principle of protection of trust related to administrative rules, in violation of the rules of evidence as to deviation from and abuse of discretion, and it is obvious that

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)