In a case where an administrative agency does not give prior notice or give the party an opportunity to submit opinions as prescribed by the former Administrative Procedures Act while taking an infringing administrative disposition, whether such disposition is legitimate (negative in principle)

Articles 21(1) and (4), and 22 of the former Administrative Procedures Act (Amended by Act No. 11498, Oct. 22, 2012)

Supreme Court Decision 2004Du1254 Decided May 28, 2004 (Gong2004Ha, 1088) Supreme Court Decision 2006Du20631 Decided September 21, 2007 (Gong2007Ha, 1682) Supreme Court Decision 2011Du30687 Decided January 16, 2013 (Gong2013Sang, 350)

Plaintiff (Law Firm, Kim & Lee LLC, Attorneys Kim Jong-ho et al., Counsel for the plaintiff-appellant)

The head of Sung-nam Si/Gu

Seoul High Court Decision 2011Nu1032 decided September 23, 2011

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. According to Articles 21(1) and (4), and 22 of the former Administrative Procedures Act (amended by Act No. 11498, Oct. 22, 2012); where an administrative agency imposes an obligation on a party or imposes a restriction on his/her rights and interests, it shall notify the parties, etc. of the facts and legal grounds for the imposition of the obligation or impose a restriction on his/her rights and interests; the method of disposal when submitting opinions; and the parties, etc. shall be given an opportunity to present their opinions, even in cases where other Acts and subordinate statutes stipulate that a hearing shall be inevitably conducted or a public hearing shall not be held; and where an administrative agency does not provide the parties, etc. with an opportunity to present their opinions, prior notice or opinion may not be given. Thus, if an administrative agency did not provide the parties with the above prior notice or opportunity to present their opinions while rendering an infringing administrative disposition, it does not constitute an exceptional case where such prior notice or opportunity to present their opinions is not revoked (see, e.g., Supreme Court Decision 2013Du16816, etc.

2. After compiling the adopted evidence, the lower court acknowledged the facts as indicated in its reasoning. The lower court accepted the Plaintiff’s claim for the revocation of the instant disposition on the ground that the instant disposition was unlawful on the ground that the instant disposition was unlawful, on the ground that it did not constitute an exceptional ground for not giving prior notice, etc. under each subparagraph of Article 21(4) of the Administrative Procedures Act, where the Defendant imposed the Plaintiff a duty to restore the instant building to a sports facility, which is its original usage (hereinafter “instant disposition”).

Examining the records in light of the relevant legal principles, the above determination by the court below is just and acceptable, and there is no violation of law by misapprehending the legal principles on the interpretation of Articles 21 and 22 of the Administrative Procedures Act, as otherwise alleged in the ground of appeal.

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ko Young-han (Presiding Justice)