[1] The legal nature of permission for use and profit-making of administrative property

[2] The legal nature of additional charges and increased additional charges imposed where a user fee for permission to use or benefit from administrative property is not paid by the payment deadline

[3] The case rejecting the judgment of the court below on the ground that the substance of the entrusted management service contract for the parking lot attached to the National Medical Center is permitted to use and profit from the administrative property under Article 24(1) of the State Property Act, and thus, the judgment of the court below on the claim for confirmation of the non-existence of the additional payment obligation under the above contract

[1] Permission for use and profit-making of the administrative property by the administration agency of State property, etc. is not a private legal act conducted as a private economic entity, but an administrative disposition conducted by the administration agency in the superior position of the public authority, and constitutes a patent on the lectures of establishing the right to use administrative property to a specific person

[2] Under Article 25(3) of the State Property Act, additional dues and aggravated additional dues as stipulated in Articles 21 and 22 of the National Tax Collection Act may be collected with respect to usage fees for the use of and benefit from administrative property by the office of administration of State property, etc., and the above additional dues and increased additional dues are the kind of incidental taxes imposed in the meaning of interest in arrears where the above usage fees are not paid by the due date.

[3] The case reversing the judgment of the court below on the claim for confirmation of the absence of additional payment obligation under the above contract, which was instituted as a civil lawsuit, on the ground that the substance of the entrusted management service operation contract for the parking lot attached to the National Medical Center is permitted to use and profit from the administrative property, and dismissing the lawsuit

[1] Article 24 (1) of the State Property Act, Articles 1 [General Administrative Disposition] and 2 of the Administrative Litigation Act / [2] Article 25 (3) of the State Property Act, Articles 21 and 22 of the National Tax Collection Act / [3] Article 24 (1) of the State Property Act, Article 1 of the Administrative Litigation Act / [general Administrative Disposition]

[1] Supreme Court Decision 95Nu11023 decided Feb. 13, 1996 (Gong1996Sang, 987) Supreme Court Decision 96Nu17325 decided Apr. 11, 1997 (Gong1997Sang, 1472), Supreme Court Decision 97Nu1105 decided Feb. 27, 1998 (Gong1998Sang, 99Du509 decided Jun. 15, 2001 (Gong2001Ha, 1618) / [2] Supreme Court Decision 200Du2013 decided Sept. 22, 200 (Gong200Ha, 22241)

Plaintiff (Law Firmcheon, Attorneys Jeon Soo-soo et al., Counsel for the plaintiff-appellant)

Korea

Seoul Central District Court Decision 2003Na56624 Delivered on May 27, 2004

The judgment of the court of first instance is reversed, and the judgment of the court of first instance is revoked. The litigation costs are assessed against the plaintiff.

Before determining the grounds of appeal, we examine it ex officio.

1. Permission for use and profit-making of the administrative property by the office of administration of State property, etc. is not a private legal act conducted as a private economic entity, but an administrative disposition conducted by the office of administration in a superior position as a public authority, and constitutes a patent in terms of lectures which creates a right to use administrative property to a specific person (see, e.g., Supreme Court Decision 97Nu1105, Feb. 27, 1998). Under Article 25(3) of the State Property Act, additional dues and increased additional dues as provided in Article 21 and Article 22 of the National Tax Collection Act may be collected pursuant to Article 25(3) of the State Property Act with respect to the usage fee for the use and profit-making of such administrative property, and if the above additional dues and increased additional dues are not paid by the payment deadline, they are the kind of incidental dues imposed as a interest in arrears (see, e.g., Supreme Court Decision 200Du2013, Sept. 22

On the premise that this case’s entrusted management contract for the attached parking lot of the National Medical Center under the defendant’s jurisdiction is a private contract executed by the management agency as a private economic entity, the plaintiff asserts that there is no obligation to pay additional dues to the plaintiff, unless there is a separate agreement on additional dues. However, according to the records, it can be known that the substance of the above operation contract was made as permission for use and profit-making under Article 24(1) of the State Property Act as to the above attached parking lot, which is administrative property. Thus, the above national medical center is an administrative disposition conducted at the superior position of the public authority upon the plaintiff’s request, and it is a student patent which grants a right to use administrative property to a specific person, and it is difficult to view it as a contract under private law conducted at an equal position

Therefore, as alleged by the Plaintiff, if the Plaintiff wishes to seek relief by asserting the absence of the obligation to pay the instant surcharge, the legal relationship should be disputed through the appropriate administrative litigation procedure, and the Defendant cannot seek confirmation of the absence of the said obligation to pay the surcharge by civil litigation as in the instant case. Therefore, the Plaintiff’s lawsuit in the instant case cannot be deemed unlawful because it has mistakenly selected the method of litigation.

Nevertheless, the judgment of the court below which dismissed the plaintiff's claim on the ground that the claim for the confirmation of the existence of the obligation of this case, which was instituted by civil procedure, is legitimate, is erroneous in the misunderstanding of legal principles as to jurisdiction, which affected

2. Therefore, without examining the grounds of appeal, the judgment of the court below shall be reversed without further proceeding to decide on the grounds of appeal. Since this case is sufficient to render a direct judgment by the Supreme Court, the judgment of the court of first instance that judged on the merits as well as the judgment of the court of first instance is obvious to be unlawful, it is revoked. Accordingly, the lawsuit of this case is dismissed on the ground as seen above. The total costs of the lawsuit

Justices Shin Hyun-chul (Presiding Justice)