[1] Whether an administrative disposition based on the municipal ordinance violates the superior laws such as the law, etc. and whether the defect in the administrative disposition based on the municipal ordinance constitutes a ground for invalidation (negative in principle)

[2] The case reversing the judgment of the court below which held that the above disposition of imposition constitutes an invalidation as a matter of course on the ground that the pertinent provisions of the Seoul Special Metropolitan City Ordinance on the Management of Public Property, which are the grounds for the imposition of delayed payment of indemnity, are not clear as to whether they are not effective

[1] In order for a defective administrative disposition to be null and void as a matter of course, the defect must be the significant part of the laws and regulations, and should be objectively apparent. Thus, for an administrative disposition to be null and void as a matter of course by an administrative agency, the provision concerns the important part of the administrative disposition. As a result, if the provision concerns the important part of the administrative disposition, and thus becomes null and void, the defect of the administrative disposition is objectively apparent and objectively apparent, and the defect of the administrative disposition accordingly should be presumed to be objectively apparent. In general, even when the Supreme Court's ruling that the provision of the Ordinance is null and void is not declared to be illegal and void, the defect of the administrative disposition based on the above Ordinance cannot be deemed to constitute grounds for revocation, and it cannot be deemed to constitute grounds for invalidation.

[2] The case reversing the judgment of the court below which held that the above disposition of imposition of indemnity constitutes an invalidation as a matter of course, on the ground that it is not objectively clear whether the provisions of the Seoul Special Metropolitan City Ordinance on the Management of Public Property, which are the basis of the disposition of deferred payment of indemnity, have no validity due to the lack of delegation of superior statutes

[1] Article 19 of the Administrative Litigation Act / [2] Article 19 of the Administrative Litigation Act

[1] Supreme Court Decision 2004Du619 decided Jun. 14, 2007 (Gong2007Ha, 1084)

Plaintiff (Attorney Kim Tae-ok, Counsel for the plaintiff-appellant)

[Judgment of the court below]

Seoul High Court Decision 2007Nu3505 decided Nov. 16, 2007

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

The judgment on the grounds of appeal shall be made ex officio.

In order for a defective administrative disposition to be null and void as a matter of course, the defect must be one of the significant parts of the laws and regulations, and should be objectively apparent. Thus, in order for an administrative disposition to be null and void as a matter of course by applying an invalid municipal ordinance, the provision concerns the important parts of the administrative disposition, which led to a defect in the part of the administrative disposition, and thus, the defect in the administrative disposition should be objectively obvious. In addition, if the illegality of the provision is objectively apparent, and the defect in the administrative disposition is objectively apparent, it should be presumed objectively obvious. In general, the circumstance that the municipal ordinance is in violation of the superior laws and regulations, such as the law, is not objectively obvious unless it is recognized that the illegality of the provision of the municipal ordinance is so obvious that there is no room for dispute over the interpretation of the provision of the municipal ordinance, and thus, the defect in the administrative disposition based on such municipal ordinance constitutes grounds for revocation and cannot be viewed as grounds for invalidation (see Supreme Court Decision 2004Du619, Jun. 14,

However, according to the judgment of the court of first instance as cited by the court below and the records, the imposition of delayed payment of indemnity against the plaintiff until September 14, 2001 is imposed on the basis of the relevant provisions of the Seoul Special Metropolitan City Ordinance on the Management of Public Property (hereinafter "Ordinance of this case"). Even if a local government comprehensively delegates matters concerning the limitation of residents' rights or the imposition of obligations or penal provisions with respect to the restriction of residents' rights and obligations, it is required to be delegated by the law. However, even if a local government comprehensively delegates matters concerning the rights and obligations of residents to the municipal ordinance without specifying the scope of such matters in detail, it is different from the order of the administrative agency. Since the municipal ordinance is a local government's autonomous corporation established by the resolution of the local council as the representative organization of the residents, it is possible to enact the municipal ordinance concerning the rights and obligations of the residents within the extent that it does not violate the law, and thus, it cannot be objectively determined that there is no reason to reject the disposition of this case as to the overdue payment charge at the time of the enforcement of the loan agreement of this case.

Nevertheless, on a different premise, the lower court determined that the instant disposition imposing late payment charges constitutes an invalidation as a matter of course solely on the ground that the instant municipal ordinance provisions were null and void due to the lack of delegation of superior statutes. In so determining, the lower court erred by misapprehending the legal doctrine on the invalidation of an administrative disposition as a matter of course,

Therefore, without further proceeding to decide on the remaining grounds of appeal, the part against the defendant among the judgment below is reversed, and this part of the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Cha Han-sung (Presiding Justice)