2017Guhap79417 Reopening of Procedure, revocation, etc.

2017Guhap79738 (Joint) Revocation of Reopening of Procedure

1. Jeju market;

2. Jeju Special Self-Governing Province Governor;

3. The book-keeping market; and

Board of Audit

June 21, 2018

July 5, 2018

1. All plaintiffs' lawsuits are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

On February 18, 2016, the defendant's demand for attention made to the plaintiff Jeju Mayor and Seopo City Mayor on February 18, 2016, and the decision of review made to the plaintiff Jeju Mayor and Jeju Special Governor on June 15, 2017 (2016-Re-Review15), and the decision of review made to the plaintiff Seopo City and Jeju Special Governor (2016-Re-Review-16) shall be revoked.

1. Grounds for filing the lawsuit;

A. The Ministry of Land, Infrastructure and Transport from 2012 to 2014, for the purpose of supporting the 9 local rivers in Jeju-si, granted the government subsidy of KRW 41.15 billion, which is 60% of the total project cost at Jeju-si, and granted the government subsidy of KRW 41.25 billion, which is 60% of the total project cost at Seopo-si, for the purpose of supporting the 12 local river improvement projects in Seopo-si, Seopo-si.

B. From September 14, 2015 to October 16 of the same year, the Defendant conducted an audit on the management status of government subsidies related to subsidized projects by the Ministry of Land, Infrastructure and Transport and the Ministry of Environment (hereinafter “instant audit”).

C. According to the results of the instant audit, the Defendant: (a) on February 18, 2016, according to Articles 22(1), 23, and 34(1) of the Subsidy Management Act, etc., on the ground that: (b) the subsidized business operator used the national subsidy to use it; and (c) the subsidized business operator should not implement the national subsidy without the approval of the head of the central government agency for the purpose other than that not reflected in the implementation plan of the river works on the basic river plan; (d) the Jeju City executed the project other than the national subsidy grant decision; (e) the 11,406, 53, and 670 won out of the national subsidy for the 12 local river improvement project without the approval of the Ministry of Land, Infrastructure and Transport; and (e) the Defendant notified the Plaintiff’s request for the issuance of the national subsidy to the Ministry of Land, Infrastructure and Transport for the purpose other than the implementation plan for the river works; and (e) the Defendant notified the Plaintiff’s request for the issuance of the subsidy to the State subsidy to the Plaintiff.

D. On March 16, 2016, the Governor of Jeju Special Self-Governing Province filed a petition with the Defendant for a retrial seeking the revocation of each of the instant demands. On June 15, 2017, the Defendant rendered a decision to dismiss all of the requests for reexamination (hereinafter referred to as “decision on the review of the demands for attention to the Jeju Market”) on June 15, 2017, and “decision on the review of the demands for attention to the Jeju Market,” and “decision on the review of the request for attention to the Jeju Market,” together, refers to each of the decisions on the review of each of the instant demands).

E. As a result, the Plaintiff Jeju Market requested attention to the Jeju Market and the revocation of the decision of review related to the Jeju Market, the Jeju Special Self-Governing Province Governor, the Plaintiff’s revocation of the decision of review of each of the instant Jeju Market, and the Plaintiff Seo Seo Seopo Market seeking to revoke the Plaintiff Seopo Market’s demand for caution and the decision of review related to the Jeju Seopo Market.

[Reasons for Recognition] A without dispute, Gap evidence 1, 2, Eul evidence 1 to 3, the purport of the whole pleadings

2. Whether the plaintiffs' lawsuit is legitimate

A. The defendant's main defense

A decision of each state of this case and each review of this case does not have compulsory power against the plaintiffs and do not have any sanctions against non-performance. The request for each state of this case and each review of this case does not constitute an administrative disposition subject to appeal litigation. Thus, all of the lawsuits of this case are unlawful.

B. Determination

1) Whether a person is eligible for an appeal litigation

A) As to “disposition” subject to appeal litigation, Articles 2(1)1 and 3 subparag. 1 of the Administrative Litigation Act provide that “the exercise or refusal of public authority as an enforcement of law with respect to specific facts by an administrative agency, or other similar administrative actions.” In this context, “the exercise or refusal of public authority as an enforcement of law with respect to specific facts by an administrative agency” refers to an act of an administrative agency under public law, such as ordering the establishment of rights or the burden of obligations with respect to a specific matter, or giving rise to other legal effects, causing direct changes in the specific rights and obligations of the people (hereinafter referred to as “administrative acts”), or refusal thereof (hereinafter referred to as “the act of administrative action”). Furthermore, the determination of whether an administrative action constitutes “the act of administrative action” and “the other party to the administrative action or the other party to the administrative interest” should be made individually by taking into account the form or nature of the administrative action or the other party to the administrative action, and the need for the application of legal relation to the administrative action or the other party to the administrative action.”

B) For the following reasons, each of the demands of this case and each of the judgments of each of the respective states of this case cannot be seen as an "administrative act" because it is difficult to view that the plaintiffs' specific rights and duties have caused a direct legal change, and it cannot be seen as a "disposition" subject to appeal litigation as an equivalent administrative action, since the suitability or necessity of appeal litigation is not recognized.

① According to Article 33 of the Board of Audit and Inspection Act, the Board of Audit and Inspection may request the competent Minister, the competent supervisory agency, or the head of the relevant agency to make corrections, caution, etc. (paragraph (1)). Upon such a request, the competent minister, etc. shall comply with the request by the date determined by the Board of Audit and Inspection (Paragraph (2). However, the major contents of each of the demands in this case refer to “a thorough performance of relevant duties so that it does not use government subsidies differently from the purpose of grant in violation of Article 22 of the Subsidy Management Act, etc.” and does not include any obligation in relation to the use of government subsidies. In addition, each of the demands in this case requires the above plaintiffs to return government subsidies executed for projects other than the purpose without the approval of the Ministry of Land, Infrastructure and Transport, but it is difficult to view that the Minister of Land, Infrastructure and Transport imposes specific obligations on the above plaintiffs, notwithstanding Article 30(1) and (31) of the Subsidy Management and Inspection Act, and thus, does not impose any obligation on the plaintiffs in this case.

② According to Article 55 of the Regulation on the Handling of Audit Affairs, etc., the period for implementation to be established when the defendant makes a demand for caution is not stipulated. In light of this, the defendant does not make a response to the results of implementation from the institution subject to audit, which has received a demand for caution, and does not actually require the response to the results of

③ The Defendant consistently stated in the instant case that the said Plaintiffs are not obligated to comply with the demands of each of the respective states of this case, and that it may not be forced even if they do not comply therewith.

④ The Board of Audit and Inspection does not have any provision or penal provision that can impose sanctions when failing to take measures with regard to the demand for caution under Article 33(2). There is no provision that any disadvantage may be imposed or any infringement may be committed if the above plaintiffs fail to comply with the demand for attention of each of the instant states.

⑤ The Plaintiffs asserts that the crime of abandonment of duties is likely to be subject to criminal punishment for the crime of abandonment of duties, and thus, the Plaintiffs may be subject to criminal punishment for the crime of abandonment of duties. However, despite the existence of a duty to act, the crime of abandonment of duties is established when a person fails to perform his/her duty under the awareness that such duty is to be performed (see, e.g., Supreme Court Decision 95Do748, Apr. 22, 1997). As seen earlier, the demand of each of the instant states does not impose specific duty to act on the Plaintiff Jeju Mayor and Seopopopopo City, so it cannot be deemed that the crime of abandonment of duties is established by failing to perform such duty

6) Since the Minister of Land, Infrastructure and Transport demanded the Plaintiffs to prepare and submit a plan of measures, etc. according to the instant notification, the Plaintiffs alleged that each of the instant states was forced. However, the Plaintiffs’ request would follow the request of the Minister of Land, Infrastructure and Transport that the Plaintiffs should prepare and submit a plan of measures, etc.

7) Taking account of the above circumstances, each of the instant demands does not directly affect the rights and obligations of the Plaintiff Jeju Market and Seopopopopool Market. The decision to review each of the instant demands is a response to the request for review of each of the instant demands. As such, insofar as it is difficult to deem that each of the instant demands causes a direct legal change in the specific rights and obligations of the Plaintiff Jeju Market and Seopopool Market, it cannot be deemed that the decision to review the instant demand for attention directly affects the Plaintiffs’ rights and obligations.

(8) On the other hand, the head, etc. of the relevant institution under the Board of Audit and Inspection Act may request the Board of Audit and Inspection to review the determination of compensation under Article 31, the request for disposition under Articles 32, 33, and 34 (Article 36(1) and (2) and Article 40(2) provides that "the Board of Audit and Inspection may file an administrative lawsuit against any judgment rendered by the Board of Audit and Inspection as a party to the administrative litigation." However, Article 40(2) of the Board of Audit and Inspection Act provides that "the Board of Audit and Inspection may file an administrative lawsuit against any judgment rendered by the Board of Audit and Inspection as to the determination of compensation under Article 31, the determination of compensation under Articles 32, 33, and 34 of the Board of Audit and Inspection Act, and any judgment made as to the request for disposition under Articles 32, 33, and 34, shall not be subject to the general litigation requirements, such as the ability to file a lawsuit, benefits in an appeal litigation, etc."

2) Whether it is legitimate as an agency litigation

The plaintiffs asserts that the lawsuit of this case is legitimate as an institution suit under Article 40 (2) of the Board of Audit and Inspection Act, which provides for the institution suit.

A lawsuit by an agency shall be instituted against a dispute over the existence or exercise of authority between the agencies of the State or public organizations (Article 3 subparag. 4 of the Administrative Litigation Act). An objective lawsuit aimed at guaranteeing the legality of administration, and in the case prescribed by law, only a person prescribed by law (Article 45 of the Administrative Litigation Act).

Article 40 (2) of the Board of Audit and Inspection Act provides that "The Board of Audit and Inspection may institute an administrative litigation against a judgment on a retrial rendered by the Board of Audit and Inspection as a party." However, if Article 40 (2) of the Board of Audit and Inspection Act provides that the nature and contents of the above agency litigation, the period for filing a lawsuit in the agency litigation should be also stipulated. However, in addition to the forms and contents of Article 40 (2) of the Board of Audit and Inspection Act and the structure of relevant regulations, it cannot be deemed that Article 40 (2) of the Board of Audit and Inspection Act allows the plaintiffs to institute a lawsuit against the defendant. In addition, there is no provision that allows the plaintiffs to institute lawsuit against "the judgment of the Board of Audit and Inspection" in any Act including the Administrative Litigation Act.

Therefore, the instant lawsuit cannot be deemed permissible under Article 40(2) of the Board of Audit and Inspection Act as an institution litigation (see Supreme Court Decision 2014Du5637, Dec. 27, 2016).

3. Conclusion

Since all of the plaintiffs' lawsuits are inappropriate, it is so decided as per Disposition.

Judges Kim Jong-il

Judges Kim Jong-Gyeong

Judges Hong Man-mo