In a case where Party A, who acquired a unregistered building that was not registered and occupied without permission for the use of the State-owned land as the site of the building, applied for permission for the use of the State-owned land, and the Mayor, the management agency, temporarily granted permission for the use of the State-owned land to Party A, and Party A, in the field investigation, was aware that Party A leased the said building to another person and used it as a restaurant, etc., and Party A violated Article 30(2) of the State Property Act on the ground that “A was in violation of Article 30(2) of the State Property Act by allowing the said State-owned land to be used and profit from it to another person through the lease of the said building,” the case holding that the above lease of the building constitutes “a case where Party A made another person use the State-owned property for profit from it” as stipulated in Article 36(1)2 of the State Property Act as grounds

The case holding that the court below erred by misapprehending the legal principles as to the lease of state-owned land to a third party as stipulated in Article 36 (1) 2 of the State Property Act, on the ground that Gap, who acquired a unregistered building and occupied the State-owned land as the site of the building without permission, applied for permission to use the above building only for his own residence, and the Mayor had the lessee of the building use the state-owned land with the permission to use it for a limited period of time, and in the field investigation, Gap leased the above building to another person and used it as restaurant, etc., and "A violated Article 30 (2) of the State Property Act by allowing the above State-owned land to use or profit from it through the lease of the above building."

Articles 30(1)1 and (2), 31(1), and 36(1)2 and 36(1)3 of the State Property Act; Article 27(3)1 of the Enforcement Decree of the State Property Act

Plaintiff (Law Firm Jinjin, Attorneys Lee Young-min et al., Counsel for the plaintiff-appellant)

(1) The term "person" means a person who is a party to a contract.

Seoul High Court Decision 2018Nu69082 decided May 21, 2019

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

The grounds of appeal are examined.

1. Case summary and key issue

A. The reasoning of the lower judgment and the record reveal the following.

1) As a State-owned administrative property, a road of 336 square meters (hereinafter “instant road”) is the de facto road (alleyway) provided to neighboring residents by adjoining to the eight-lane line. The accurate point of time is as follows: (a) a building not unregistered (hereinafter “instant building”) was located on the part of 87 square meters (hereinafter “instant State-owned land”) upon the boundary of the instant road; and (b) the Plaintiff acquired the instant building by transfer around 1982.

2) Although the Defendant, a road management agency, identified the fact that the instant state-owned land was occupied and used without permission as the site of the instant building, the Plaintiff, by disclosing the purport that the Plaintiff would use the instant building only as “the person’s residence,” and, on January 1, 1990, the Plaintiff applied for permission to use the instant state-owned land for a limited period of three years, and granted permission to use the instant state-owned land every three years, and thereafter, newly granted permission to use it on December 29, 2016 (hereinafter “the instant permission to use”).

3) In the on-site investigation on January 19, 2018, the Defendant identified the fact that the Plaintiff leased the instant building to another person (hereinafter “lease of the instant building”) and used it as a restaurant and garment. The Defendant disposed of the Plaintiff’s State-owned land through the lease of the instant building as the ground for “the Plaintiff violated Article 30(2) of the State Property Act by allowing another person to use and profit from the instant State-owned land through the lease of the instant building.” On April 4, 2018, the Defendant revoked the instant use permit pursuant to Article 36(1)2 of the State Property Act, and ordered the Plaintiff to reinstate the instant State-owned land by April 30, 2018.

B. The key issue of the instant case is whether the lease of the instant building constitutes “where one allows another person to use or benefit from the permitted property” prohibited under Article 30(2) of the State Property Act.

2. The judgment of the court below

For the following reasons, the lower court determined that the instant building did not constitute “a case where the leased property of the instant building did not constitute “a case where allowing another person to use or benefit from the property

A. Notwithstanding the lease of the instant building, the Plaintiff, the owner of the instant building, occupies and uses the instant State-owned land.

B. The Defendant did not limit the Plaintiff’s direct use and profit-making of the instant building when granting permission to use the instant state-owned land. Accordingly, the Plaintiff’s lease of the instant building constitutes a method of using and profit-making from the building that could have been anticipated as the Defendant also.

C. Even if the Plaintiff leases the instant building to a third party, it cannot be deemed that the State is more unfavorable than the Plaintiff directly occupies and uses it.

3. Judgment of the Supreme Court

However, the lower court’s determination is difficult to accept for the following reasons.

A. The term used in an individual statute ought to be individually interpreted in accordance with the legislative purpose and intent of each statute (see Supreme Court Decision 2007Du6427, Oct. 25, 2007). The ground provision for an indive administrative disposition ought to be strictly interpreted and applied, and shall not be excessively expanded or analogically interpreted or analogically interpreted in the direction unfavorable to the other party to the disposition. However, the interpretation of the provision does not exclude a teleological interpretation that takes into account the legislative purpose and intent, etc., unless it goes beyond the ordinary meaning of the text (see Supreme Court Decision 2011Du2337, Feb. 23, 2012, etc.).

B. Ordinary lease of a building is naturally accompanied by the use of the site part. In this context, the landowner may generally be deemed to allow the above use of the site by the lessee of the building, except in extenuating circumstances.

C. According to the State Property Act, an administrative agency’s property for public use among administrative property is, in principle, to directly use and preserve it (Articles 6(2)2 and 27), and a permission for use may be granted only to the extent that does not interfere with its use or purpose exceptionally (Article 30(1)1). In cases where an administrative agency intends to grant permission for use of administrative property, it shall, in principle, be publicly announced and put into general competition. However, if deemed necessary in light of the purpose, character, size, etc. of the permission for use, it may be granted by restricting the eligibility of participants or by designating participants or by hand, as prescribed by Presidential Decree (Article 31(1)1 of the Enforcement Decree of the State Property Act), and permission for use may be granted by means of “residential” (Article 27(3)1 of the Enforcement Decree of the State Property Act).

A person who has obtained permission for use of any administrative property shall not allow another person to use it or make profits from it: Provided, That where a person who has obtained permission for use of the donated property is a donator of such property, his/her heir, or his/her general successor, he/she may allow another person to use or make profits from such property after obtaining approval from the office of administration (Article 30(2)). Where a person who has obtained permission for use of the administrative property "where he/she allows another person to use or make profits from the property for which he/she has obtained permission for use in violation of Article 30(2)" or "where he/she violates the purpose of use", the office of administration may revoke or withdraw such

D. Examining the facts as seen earlier in light of the content of the relevant statutes and relevant legal principles, the Plaintiff, even though having obtained permission to use the instant building only for its own residential purpose, should be deemed to have leased the instant building to a third party, thereby allowing the lessee of the building to use and benefit from the State-owned land, contrary to the purpose and purport that the Defendant planned at the time of permission for use. Accordingly, the lease of the instant building constitutes “a case where the Plaintiff allowed a third party to use and benefit from the permitted property” under Article 36(1)2 of the State Property Act as the grounds for revocation of permission for use.

E. Nevertheless, solely based on its stated reasoning, the lower court determined that the Plaintiff could not be deemed as allowing another person to use or benefit from the State-owned land in this case. In so determining, the lower court erred by misapprehending the legal doctrine on Article 30(2) of the State Property Act.

4. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min You-sook (Presiding Justice)