[1] Whether the Minister of Justice determines the prescribed number of notaries public and appoints an appointed notary public, or whether the authorized notary public has the discretion to authorize the authorized notary public (affirmative)

[2] The purport of imposing an obligation on an administrative agency to specifically determine and publicly announce the disposition standards, and the case where the disposition standards may not be separately publicly announced or generally announced pursuant to Article 20 (1) of the Administrative Procedures Act, which provides for exceptions to the duty of prior public announcement of the disposition standards, pursuant to Article 20 (2) of the same Act

[3] The purpose of the provision of Article 23(1) of the Administrative Procedures Act concerning the basis of the disposition and the presentation of the reason, and the case where the disposition cannot be deemed as a procedural defect that should be revoked unless the basis and reason are specifically specified in the written disposition

[4] Whether the Administrative Procedures Act or the Act on the Treatment of Civil Petitions is a mandatory provision (negative)

[5] Matters to be considered by the Minister of Justice when determining the quota of notaries public

[1] As the state affairs, the act of authorization and appointment of notary public is an act of granting a special authority to a private person by the State. However, the notary public law does not specifically regulate the specific criteria or procedures for the selection of notary public and leaves it to the Minister of Justice. In full view of the content and structure of the notary public law, legislative intent, character of notarial affairs, etc., the Minister of Justice shall set the prescribed number of notary public in consideration of the district under the jurisdiction of each district public prosecutor's office, population, demand for notarial affairs, accessibility of residents, etc., and set the prescribed number of notary public and have broad discretion to appoint notary public or authorize notary public.

[2] Article 20(1) of the Administrative Procedures Act provides, “The administrative agency shall specifically determine and publicly announce the necessary disposition standards so that they may be in light of the nature of the relevant disposition. The same shall apply to the modification of the disposition standards.” Article 20(2) provides, “The public announcement of the disposition standards under paragraph (1) may not be made in cases where it is considerably difficult in light of the nature of the relevant disposition or where there are reasonable grounds to be deemed to significantly undermine the safety and welfare of the public.”

As such, allowing an administrative agency to specifically determine and publicly announce a disposition standard is to increase predictability of the result of the relevant disposition by allowing the relevant disposition to be made in accordance with the standards that are publicly announced as much as possible, thereby ensuring fairness, transparency, and reliability of administration, and preventing the arbitrary exercise of its authority by the administrative agency. However, in a case where the disposition standard is publicly announced in advance due to the nature of the disposition, it is rather appropriate for the public safety and welfare of the general public by granting discretionary authority to the administrative agency within a certain scope in a specific case by making it impossible to achieve administrative objectives or by granting discretionary authority to the administrative agency within a certain scope. In such a case, the disposition standard may be publicly announced or generally announced pursuant to Article 20(2) of the Administrative Procedures

[3] Article 23(1) of the Administrative Procedures Act provides, “In cases where an administrative agency takes a disposition, it shall present the basis and reasons therefor to the parties except in any of the following cases.” This purport is to exclude arbitrary decisions of the administrative agency and allow the parties to properly cope with it in the administrative remedy procedure. Therefore, in full view of the contents stated in the written disposition, relevant Acts and subordinate statutes, and the overall process up to the relevant disposition, etc., where it can be sufficiently known that the parties concerned at the time of the disposition have any grounds and reasons, and where it is deemed that there is no particular hindrance in bringing them into the administrative remedy procedure, such disposition cannot be deemed as procedural defect unless the grounds and reasons for the disposition are specified in the written disposition:

[4] Article 19(1) of the Administrative Procedures Act provides, “Administrative agencies shall determine and publicly announce in advance the treatment period by type for the applicant’s convenience.” Article 17(1) of the Civil Petitions Treatment Act provides, “The head of an administrative agency shall, in order to promptly handle legal civil petitions, determine and publicly announce in advance the treatment period required from the receipt of a legal civil petition to the completion of the treatment in advance, for each type of legal civil petition.” Article 23(1) of the Enforcement Decree of the Civil Petitions Treatment Act (hereinafter “Enforcement Decree of the Civil Petitions Treatment Act”) provides, “Where 30 days have passed since the receipt of the civil petition, but the treatment period has not been completed or where a civil petitioner’s explicit request is made, the head of the administrative agency shall deliver to the civil petitioner a document stating the situation and the scheduled date for the completion of the treatment, or notify it by means of information and

The purpose of determining the treatment period of a disposition or a civil petition is to ensure that the affairs pertaining to the application are handled as soon as possible. The provision on the treatment period is merely a decoration provision, and cannot be viewed as a mandatory provision. Even if the administrative agency takes a disposition after the processing period, it cannot be viewed as a procedural defect to revoke the disposition. The notification on the progress of civil petition treatment pursuant to Article 23 of the Enforcement Decree of the Civil Petitions Treatment Act is only an additional system for the convenience of civil petitioners, and even if the notification was not made, it cannot be viewed as a procedural defect to revoke the disposition.

[5] The quota of a notary public by region shall be determined in consideration of the legislative purpose and area of the notary public law, objective circumstances such as population, demand for notarial affairs, convenience of residents, etc. of the notary public law, which "Securing appropriateness and fairness of notarial affairs," and the subjective interests of the person who intends to be a notary public shall not be given priority

[1] Articles 10(2), 15-2, and 15-4 of the Notary Public Act; Article 27 of the Administrative Litigation Act / [2] Article 20(1) and (2) of the Administrative Procedures Act / [3] Article 23(1) of the Administrative Procedures Act / [4] Article 19(1) of the Administrative Procedures Act; Article 17(1) of the Civil Petitions Treatment Act; Article 23(1) of the Enforcement Decree of the Civil Petitions Treatment Act / [5] Article 10(2) of the Notary Public Act

[2] Supreme Court Decision 2006Du9283 Decided April 24, 2008, Supreme Court Decision 2008Du5148 Decided August 25, 201 / [3] Supreme Court Decision 2011Du18571 Decided November 14, 2013 (Gong2013Ha, 2244), Supreme Court Decision 2016Du4578 Decided November 9, 2016, Supreme Court Decision 2016Du65718 Decided January 31, 201 / [4] Supreme Court Decision 2004Du7115 Decided November 12, 2004; Supreme Court Decision 2013Du15605 Decided August 27, 2015; Supreme Court Decision 2013Du15105 Decided August 27, 2015

Law Firm Seosan

The Minister of Justice

The third party intervenor in the lawsuit

Seoul High Court Decision 2017Nu81436 decided April 12, 2018

The appeal is dismissed. The costs of appeal are assessed against the plaintiff, including the part resulting from participation in the lawsuit.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. The method of citing the reasoning of the first instance judgment pursuant to Article 420 of the Civil Procedure Act (Ground of appeal No. 1)

The Plaintiff asserts that the reasoning of the judgment of the court of first instance merely stated “a citing the reasoning of the judgment of the court of first instance” and without stating any specific reason. However, there is no ground to deem that “the method of accepting the judgment of the court of first instance concerning the reasoning of judgment” under Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act is limited to specifying and citing only a part of the reasoning of the judgment of the court of first instance. If the whole of the grounds of the judgment of the court of first instance is reasonable, it is allowed to refer to the entire reasoning of the judgment of the court of first instance.

2. Whether a notary public is a discretionary act (ground of appeal No. 2)

As a law firm, limited liability law firm, or law firm partnership established under the Attorney-at-Law Act, at least two of the attorneys-at-law of the relevant law firm, etc. among the attorneys-at-law in charge of authentication prescribed in Article 15-4 of the Notary Public Act, the Minister of Justice may grant a notary public and designate a competent district public prosecutor's office (Article 15-2 of the Notary Public Act). The qualification of an attorney-at-law in charge of authentication is that a notary public has served in the position prescribed in each subparagraph of Article 42(1) of the Court Organization Act for not less than 10 years, and that the qualification of an attorney-at-law in charge of authentication is that

The number of notaries public belonging to each district public prosecutor's office shall be determined by the Minister of Justice in consideration of the area, population, etc. under the jurisdiction of each district public prosecutor's office (Article 10 (2) of the Notary Public Act), and Article 2 [Attachment 1] of the Regulations on the Quota and Guarantee of Good Conduct of Notaries Publics (Ordinance of the Ministry of Justice) of the Ministry of Justice (Ordinance of the Ministry of Justice) of the Ministry of Justice shall separately

Articles 11 through 15 of the Notary Public Act (Act No. 9416 of Feb. 6, 2009), which provide for matters concerning authorized notary public, appointment of notary public, qualifications, grounds for dismissal, term of office, retirement age, and provisions concerning the appointment of notary public, appointment of notary public, appointment of notary public, grounds for dismissal, and retirement age, are newly established or amended at the time of the amendment of the Notary Public Act (Act No. 9416 of Feb. 6, 2009). The purpose of the provision is to strengthen standards for appointment of notary public and appointment of notary public in order to enhance

As a state affairs, authorization and appointment of notary public is an act of granting a special authority to a private person by the State. However, the notary public-related Acts and subordinate statutes are left to the Minister of Justice without specifically regulating the specific criteria or procedures for the selection of notary public. In full view of the content and structure of the notary public-related Acts and subordinate statutes, legislative intent, characteristics of notarial affairs, etc., the Minister of Justice shall determine the prescribed number of notaries public in consideration of the area within the jurisdiction of each district public prosecutor's office, population, demand for notarial affairs, accessibility of residents, etc., and have a broad discretion to appoint or authorize notary public.

In the same purport, the lower court determined that a notary public pursuant to Article 15-2 of the Notary Public Act was the Defendant’s discretionary act. In so doing, the lower court was justifiable in accordance with the foregoing legal doctrine, and did not err by misapprehending the legal doctrine on the legal nature of notary public

3. Whether procedural defects exist (ground of appeal No. 3)

A. Whether it violates the duty of prior disclosure of disposition standards

Article 20 (1) of the Administrative Procedures Act provides, “The administrative agency shall determine and publicly announce the necessary disposition standards so that they may be in light of the nature of the relevant disposition. The same shall also apply to the modification of the disposition standards.” Article 20 (2) of the Administrative Procedures Act provides, “The publication of the disposition standards under paragraph (1) may not be made in cases where it is considerably difficult in view of the nature of the relevant disposition or where there are reasonable grounds deemed to significantly undermine the safety and welfare of the public.”

As such, allowing an administrative agency to specifically determine and publicly announce a disposition standard is to increase predictability of the outcome of the relevant disposition, thereby securing fairness, transparency, and reliability of administration, and prevent the arbitrary exercise of its authority by an administrative agency. However, in a case where the disposition standard is publicly announced in advance due to the nature of the disposition, it is rather appropriate for the public safety and welfare in light of individual circumstances in a specific case by granting discretionary authority to the administrative agency within a certain scope. In such a case, it is more appropriate for a flexible disposition to ensure the safety and welfare of the general public. In such a case, the disposition standard may be publicly announced or generally announced pursuant to Article 20(2) of the Administrative Procedures Act (see, e.g., Supreme Court Decisions 206Du9283, Apr. 24, 2008; 2008Du5148, Aug. 25, 2011).

The lower court determined that a notary public pursuant to Article 15-2 of the Notary Public Act is considerably difficult to publish the disposition standards by nature because it is determined by taking into account regional circumstances and demand for authentication. In so doing, the lower court is acceptable in light of relevant legal principles. In so doing, the lower court did not err by misapprehending the legal doctrine on the duty to make a prior publication of the disposition standards under

B. Whether the disposition violates the duty to present the reason

Article 23(1) of the Administrative Procedures Act provides, “In rendering a disposition, an administrative agency shall present the basis and reasons for the disposition to the parties, except in any of the following cases.” This purport is to exclude arbitrary decisions of the administrative agency and allow the parties to properly cope with the administrative remedy procedure. Therefore, in full view of the content stated in the written disposition, the relevant statutes and the overall process, etc. up to the relevant disposition, etc., where it can be sufficiently known that the parties to the disposition were made at the time of the disposition, and where it is deemed that there was no particular hindrance to the party’s appeal and moving to the administrative remedy procedure, it cannot be deemed that the disposition was procedural defect that should be revoked, even if the grounds and reasons for the disposition are not specified in the written disposition (see, e.g., Supreme Court Decision 2011Du18571, Nov. 14, 2

The lower court determined that the instant disposition did not constitute procedural defect in violation of Article 23(1) of the Administrative Procedures Act. For that reason, the Defendant presented the grounds and reasons for the instant disposition that “the reason for the public interest, such as proper placement of notary public, convenience of civil petitioners, etc.” and the meaning of the disposition is ambiguous or unspecific. In so doing, the lower court did not err by misapprehending the legal doctrine on the duty of presentation of reasons under the Administrative Procedures Act, contrary to what is alleged in the grounds of appeal

C. Whether the processing period of the disposition and the duty to notify the progress of the disposition is violated

Article 19(1) of the Administrative Procedures Act provides, “Administrative agencies shall determine and publicly announce in advance the treatment period of dispositions for the convenience of applicants by type.” Article 17(1) of the Civil Petitions Treatment Act provides, “The head of an administrative agency shall, in order to promptly handle legal civil petitions, determine and publicly announce in advance the treatment period required from the receipt of a statutory civil petition to the completion of the treatment in advance for each type of legal civil petition.” Article 23(1) of the Enforcement Decree of the Civil Petitions Treatment Act (hereinafter “Enforcement Decree of the Civil Petitions Treatment Act”) provides, “Where 30 days have passed since the receipt of the civil petition but the treatment period has not been completed or where a civil petitioner’s explicit request is made, the head of the administrative agency shall deliver a document stating the progress of the treatment and the scheduled date of the treatment to the civil petitioner or notify it by means of information and communications network or mail, etc.”

The purpose of determining the treatment period of a disposition or a civil petition is to ensure that the affairs pertaining to the application are handled as soon as possible. The provision on the treatment period is merely a decoration provision and cannot be deemed a mandatory provision. Even if an administrative agency takes a disposition after the lapse of the treatment period, it cannot be deemed a procedural defect for cancelling the disposition (see, e.g., Supreme Court Decision 2004Du7115, Nov. 12, 2004). The notification of the progress of the civil petition treatment pursuant to Article 23 of the Enforcement Decree of the Civil Petitions Treatment Act is an additional system for the convenience of civil petitioners, and even if the notification was not made, it cannot be deemed a procedural defect for cancelling the disposition (see Supreme Court Decision 2013Du1560, Aug. 27, 2015).

The lower court determined that the instant disposition cannot be deemed a procedural defect that the Defendant did not publish the processing period of a notary public pursuant to Article 15-2 of the Notary Public Act in advance or that the notary public did not notify the Plaintiff of the progress of the application. In so doing, the lower court did not err by misapprehending the legal doctrine on the treatment period of the disposition and civil petition under the Administrative Procedures Act or the Civil Petitions Treatment Act or notification of the progress of the treatment.

4. Whether discretionary authority is deviates or abused (Ground of appeal No. 4)

Unlike the case of binding act, a judicial review on discretionary action can only examine and determine whether the court is unable to derive its own conclusion, taking into account the possibility of discretion regarding public interest judgment of an administrative agency, and whether there is deviation or abuse of discretionary authority’s judgment. Determination of deviation or abuse of discretionary authority ought to be based on whether an administrative agency erroneously construed or mistakenly misleads the relevant statutes concerning the grounds considered in the discretionary judgment, and whether a notary public violates the principle of proportionality and equality and the general principles of the same Act in the comparison of public interests and private interests (see, e.g., Supreme Court Decisions 98Du17593, Feb. 9, 201; 2016Du5490, Mar. 15, 2017). Furthermore, determination of whether a notary public of each region is a notary public should take into account objective circumstances such as the legislative purpose and area of the Notary Public Act, population, demand for notarial affairs, convenience of residents, etc.

According to the reasoning of the lower judgment, the following facts are revealed. On May 18, 2017, the Defendant: (a) rendered the instant disposition rejecting an application by a notary public pursuant to Article 15-2 of the Notary Public Act with respect to the Plaintiff having an office in the ○○ area; (b) on May 29, 2017, a notary public who already appointed a notary public in the ○○ area at the age of retirement, appointed a third party intervenor as an appointed notary public pursuant to Article 11 of the Notary Public Act in order to fill any vacancy arising from retirement.

For the following reasons, the lower court determined that the Defendant’s decision was objectively unreasonable. The number of notaries public in the area of ○○ was maintained as one and there is no evidence to deem that there is insufficient number of notaries public in view of the population in the area of ○○○○ and the demand for notarial affairs. While authorized notary public pursuant to Article 15-2 of the Notary Public Act concurrently conducts attorney-at-law affairs, an appointed notary public pursuant to Article 11 of the Notary Public Act is prohibited from holding concurrent offices, and thus, an appointed notary public is desirable to appropriately perform notarial affairs.

The lower court did not err by misapprehending the legal doctrine on deviation and abuse of discretionary power, contrary to what is alleged in the grounds of appeal.

5. Conclusion

The Plaintiff’s appeal is dismissed as it is without merit, and the costs of appeal are assessed against the losing party including the part arising from participation in the lawsuit. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Dong-won (Presiding Justice)