[1] The meaning of the fairness of the administrative act

[2] Requirements and criteria for determining a defective administrative disposition as a matter of course

[3] The case holding that where a road which a housing construction project operator bears the cost of construction for confirmation and packing does not fall under "entry roads" under Article 25 of the Regulations on Standards, etc. for Housing Construction, and thus imposes the said cost without deducting the cost of construction from the charges for metropolitan transportation facilities, it is merely erroneous that the legal relation or factual relations concerning the subject of imposition of metropolitan transportation facilities are imposed, and thus, the said disposition is not necessarily null and void, on the ground that the defect is not objectively obvious

[1] Article 741 of the Civil Act, Articles 1 [general Administrative Disposition] and 19 of the Administrative Litigation Act / [2] Article 741 of the Civil Act, Article 1 of the Administrative Litigation Act / [3] Article 741 of the Civil Act, Article 19 of the Administrative Litigation Act / [3] Article 1 of the Civil Act, Articles 11 and 11-3 (1) of the former Special Act on the Management of Intercity Transport in Metropolitan Areas (amended by Act No. 6916 of May 29, 2003), Articles 15 and 16-2 (3) 2 (see current Article 4 (4) 2) of the Enforcement Decree of the Special Act on the Management of Intercity Transport in Metropolitan Areas (amended by Presidential Decree No. 18044 of June 30, 2003), Article 25 of the Housing Construction Standards, etc.

[1] Supreme Court Decision 90Nu8756 delivered on April 23, 1991 (Gong1991, 1520), Supreme Court Decision 94Da28000 delivered on November 11, 1994 (Gong1994Ha, 3266) / [2] Supreme Court Decision 95Da4672 delivered on May 9, 1997 (Gong197Sang, 1719), Supreme Court Decision 2001Du4566 delivered on December 10, 202 (Gong2003Da68485 delivered on October 15, 2004)

Filidong Construction Co., Ltd. (Law Firm Filiwon, Attorneys Choi Jung-tae et al., Counsel for the plaintiff-appellant)

Gyeonggi-do (Law Firm Marin, Attorneys Lee Jae-chul et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2006Na32172 Delivered on November 1, 2006

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 grounds of appeal are examined.

1. Even if an administrative disposition is unlawful, its effect cannot be denied without permission on the ground of its defect, except where there are grounds to regard it as null and void due to its grave and apparent defect. Although its validity is the same as res judicata of a judgment, if the defect in an administrative act belonging to the objective scope of its impartiality is not the same as res judicata of a judgment, it cannot be said that the benefit accrued from the act is no legal ground unless the disposition is revoked (see Supreme Court Decision 94Da2800, Nov. 11, 1994, etc.). In addition, in order for the defective administrative disposition to be null and void, it shall be deemed that the defect was seriously in violation of the relevant laws and regulations, and it shall be objectively obvious that the defect was in violation of the purpose, meaning, function, etc. of the relevant laws and regulations, and it is evident that there is no room for misunderstanding of the legal relations or interpretation of the provisions of the Acts, even if there is no obvious ground for misunderstanding of the legal relations or interpretation of the provisions of the Acts.

2. The lower court: (a) concluded an agreement on the establishment of roads and consignment with the effect that the Plaintiff, who succeeded to the housing construction project of this case, shall bear the total amount of construction cost of the above 3.5 billion won in length connected to the site of the housing construction project of this case, among the “102 Es.U.S. roads adjacent to the site of this case” connecting the route of the housing construction project of this case to the es.g., e., e., e., e., e., e., e., e., e., g., e., e., e., e., e., e., g., e., e., e., e., e., e., e., e., e., e., e., e., e., e., e., e., e., g., e., e., e., e., e., e., e., e., e.

However, in light of the legal principles as seen earlier, insofar as the part of the above 102 line, among the above 102 line, does not correspond to the access road, and the Plaintiff bears the confirmation and packing construction cost, it should be deducted from the charges for the instant metropolitan transportation facilities. However, even if the imposition or payment demand of the charges for the instant metropolitan transportation facilities was made without deducting the charges, it cannot be said that the defect is objectively obvious since it was merely a mistake in the legal relation or factual relations with the subject of the charges for the instant metropolitan transportation facilities, and therefore, it cannot be deemed as a ground for the revocation of the disposition.

Nevertheless, the judgment of the court below that made a different judgment is erroneous in the misapprehension of legal principles as to the imposition of charges for metropolitan transportation facilities and unjust enrichment, which affected the conclusion of the judgment. The ground of appeal on this point is with merit.

3. Therefore, the part of the lower judgment against the Defendant is reversed, and that part of 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 Park Si-hwan (Presiding Justice)