[1] The meaning of "a case where permission is obtained by fraudulent or other illegal means" under Article 13 (1) 1 of the Outdoor Advertisements, etc. Control Act

[2] Where the previous administrative disposition which acquired a certain interest and right from the citizen can be revoked ex officio, and where the burden of proof on the necessity of revocation is borne (=administrative agency)

[1] "Where a person obtains permission by fraudulent or other illegal means" under Article 13 (1) 1 of the Outdoor Advertisements, etc. Control Act means a case where a person obtains permission by committing an act deemed to be unfair by social norms, such as false, deceptive, concealment, etc. without meeting any of the requirements for permission. It does not mean a case where a person obtains permission without meeting the requirements for permission.

[2] If a citizen acquires a certain interest and right due to a certain administrative disposition, an administrative disposition to revoke it ex officio on the premise that there is a defect in the previous administrative disposition is a separate administrative disposition to deprive him/her of the existing interest and rights of the person already acquired, and there is a defect in the administrative disposition to be revoked. Furthermore, even if there is a defect in the administrative disposition, even if there is a defect in the administrative disposition, it may be revoked only if it is a strong case to justify the disadvantage of the party to the public interest, such as the necessity of public interest, protection of trust and infringement of the stability of legal life, etc.

[1] Article 13 (1) 1 of the Outdoor Advertisements, etc. Control Act / [2] Article 1 of the Administrative Litigation Act / [2] Articles 1, 19, and 26 of the Administrative Litigation Act / [Liability for Certification]

[2] Supreme Court Decision 2011Du23375 Decided March 29, 2012 (Gong2012Sang, 699)

IMD Co., Ltd. (Attorneys Kim full-time et al., Counsel for the plaintiff-appellant)

The head of Gangnam-gu Seoul Metropolitan Government (Government Law Firm Corporation, Attorneys Kim Jong-soo et al., Counsel for defendant-appellant)

Seoul High Court Decision 2013Nu4240 decided March 28, 2014

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1 and 2

The lower court acknowledged the facts as indicated in its reasoning based on the adopted evidence, and determined that, in order to install advertisements on the outer wall of the fourth-sixth floor of the instant building, it may be deemed that the installation of advertisements on the outer wall of the fourth-sixth floor of the instant building constitutes the alteration of common areas, and thus, in order to install advertisements on the outer wall of the fourth-sixth floor of the instant building, it is necessary to obtain the resolution of the management body meeting under Article 15(1) of the former Act (amended by Act No. 11555, Dec. 18, 2012; hereinafter “the Aggregate Buildings Act”) and the approval of the sectional owners of the fourth-sixth floor of the instant building under Article 15(2) of the same Act. However, in applying for the permission for the installation of the instant advertisements, Nonparty 1 submitted the defective written consent for use

In light of the records and relevant legal principles, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the relationship with the provisions of the Outdoor Advertisements, etc. Control Act (hereinafter “ Outdoor Advertisements Act”), the misapprehension of legal principles as to the alteration of common areas under Article 15 of the Multi-

2. As to the grounds of appeal Nos. 3 and 4

A. According to the reasoning of the lower judgment, the lower court determined as follows.

1) The Defendant pointed out that “an act of issuing a written consent to use by the manager suspended,” “an official seal of the manager of the management body affixed with the written consent to use of the building,” and “an act of failing to comply with the procedure for approving the use of the joint ownership portion under the Act on the Ownership and Management of Aggregate Buildings,” which are cited as the grounds for disposition in the instant case, are all “an act of issuing the written consent to use by the manager of the instant building”, “an act of failing to comply with the procedure for approving the use

2) The installation of the instant advertisement on the top of the instant building, which is an aggregate building, constitutes a change in common areas, and Nonparty 1 should verify that the resolution of the management body meeting or the consent of the sectional owners of the 4-6th floor of the instant building had been obtained, but without verifying the fact, Nonparty 1 was issued by Nonparty 2, not the manager representative, and submitted to the Defendant with a written consent of use. Even if the installation of the instant advertisement constitutes the management of common areas, it constitutes a case where the permission for display of the instant advertisement was obtained by deeming that there was no lease agreement or approval for use on the front wall of the 4-6th floor of the instant building, even if the instant advertisement was not

3) In the instant lawsuit, the Defendant added the grounds for the disposition that “the permission for the display of the instant advertisements (profit-making administrative act) was made with the consent to use without the resolution of the management body of the instant building is revoked ex officio.” Since the permission for display of the instant advertisements (profit-making administrative act) can be revoked ex officio, the said disposition is also recognized.

4) Nonparty 1 submitted to Nonparty 2 a written consent of the management body meeting of the instant building issued without the resolution of the management body meeting of the instant building or the consent of the sectional owners of the fourth to sixth floors, in violation of the mandatory provisions, and this constitutes an application by means of closure of facts or other fraudulent methods. Thus, the revocation of the said permission by the Defendant’s disposition of this case does not constitute a deviation or abuse of discretion.

B. However, it is difficult to accept the above determination by the court below for the following reasons.

1) "Where a person obtains permission by fraudulent or other illegal means" under Article 13(1)1 of the Outdoor Advertisements Act means where a person obtains permission by committing an act deemed to be unfair under social norms, such as false, deceptive, concealment, etc. without meeting any of the requirements for obtaining permission. It does not mean where a person obtains permission by simply satisfying the requirements for obtaining permission.

However, in light of the above legal principles, as seen earlier, it is difficult to deem that Nonparty 1 was unable to obtain effective approval for the use of the outer wall of the instant building in order to install the instant advertisement, as seen earlier. However, the lower court erred by misapprehending the legal doctrine regarding false or other unlawful means as stipulated in Article 13(1)1 of the Outdoor Advertisement Act, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, thereby adversely affecting the conclusion of the judgment.

A) On February 10, 2010, Nonparty 1 concluded a lease agreement for the installation of the instant advertisement with the owner or manager of the instant building’s outer wall, knowing that approval for use is required for the instant advertisement display permission on the outer wall of the building, and submitted a written consent for use in the name of the management body of the instant building that was received based on the said lease agreement, and obtained the instant advertisement permission from the Defendant. On September 9, 201, the Plaintiff, who received the instant advertisement permission from Nonparty 1, entered into a lease agreement with Nonparty 4 for the same purpose with the temporary manager of the management body of the instant building. In other words, it is difficult to view that Nonparty 1, in order to install the instant advertisement on the outer wall of the building, should have obtained the consent of the sectional owner with respect to the outer wall of the instant building under Article 15(1) of the former Aggregate Buildings Act.

B) Around November 2010, Nonparty 1 requested the Defendant to submit the written consent of use as of August 2, 2010 when Nonparty 1 applied for the permission to display the instant advertisement, and the employee in charge of the Defendant demanded the Defendant to submit the written consent of use in close vicinity to the filing date of the application for permission. At the time of the said application, Nonparty 1 was unable to obtain the written consent of use by the manager of the instant building at the time, and it is virtually impossible for Nonparty 1 to receive the written consent of use by the manager of the instant building at the time, and it can be deemed that Nonparty 1 submitted the written consent of use and a written vindication on December 6, 2010 after Nonparty 2 confirmed the legitimate tenant of the outer wall of the instant building at the time. Nonparty 1 cannot be deemed to have obtained the authority to use the instant building upon entering into a lease contract for the use of the outer wall of the instant building. Nonparty 1 can be deemed to have obtained the written consent of use, and even if Nonparty 1 received the written consent of use without validity after the said written consent.

2) Meanwhile, an administrative disposition to revoke ex officio on the premise that there is a defect in the previous administrative disposition when a citizen acquires a certain benefit and right due to a certain administrative disposition is a separate administrative disposition to deprive him of the existing interest and rights of the person already acquired, and there is a defect in the administrative disposition to be revoked. Furthermore, even if there is a defect in the administrative disposition, even if there is a defect in the administrative disposition, it may be revoked only if it is a strong case to justify the disadvantage of the party to the public interest due to the necessity of public interest, protection of trust and infringement of the stability of legal life, etc., and the burden of proof on the defect or necessity to revoke is an administrative agency that has made a disposition that infringes on the existing interest and rights (see Supreme Court Decision 2011Du23375, Mar. 29, 2012

In light of the above legal principles, even if there is any defect in the permission to display the advertisement of this case without the consent to use the effective building outer wall of this case, the defendant may cancel the permission to display the advertisement of this case ex officio only when the public interest needs are strong enough to justify the disadvantages that the plaintiff may suffer, such as the necessity of public interest to cancel, the right to obtain profit and infringement of trust and stability in legal life.

Nevertheless, without examining these issues, the lower court erred by misapprehending the legal doctrine on the revocation of beneficial administrative dispositions, which was deemed to have been ex officio revoked on the sole basis of the defects in the permission to display the instant advertisement, which is a beneficial administrative disposition, and failing to exhaust all necessary deliberations.

C. The ground of appeal assigning this error is with merit.

3. Conclusion

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.

Justices Shin Young-chul (Presiding Justice)