Plaintiff (Law Firm Cho & Lee, Attorneys Jeong Jin-jin, Counsel for plaintiff-appellant)

Head of Gu Eup/Myeon (Attorney Go Young-young, Counsel for defendant-appellant)

November 14, 2012

Jeju District Court Decision 201Guhap1010 Decided July 11, 2012

1. Revocation of a judgment of the first instance;

2. On February 17, 2011, the Defendant’s disposition to return a building report to the Plaintiff is revoked.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Details of the disposition;

The following facts shall not be disputed between the parties, or may be acknowledged in the entry of Gap evidence 1 by integrating the whole purport of the pleadings:

A. On January 11, 201, the Plaintiff filed a building report (hereinafter “instant application”) with the Defendant to construct the second floor detached housing (hereinafter “instant building”) on the ground of KRW 30,031,00,000,000 (hereinafter “instant forest land”) out of KRW 2,031,00,000,00 in Jeju-si owned by the Defendant.

B. On February 17, 2011, the Defendant issued a return disposition against the Plaintiff on the grounds as follows (hereinafter “instant disposition”).

The instant forest land included in the main sentence ① The instant forest land, for which no permission for change of the form and quality of a forest is lawful (Supreme Court Decision 2005Du10521 Decided January 13, 2006), is included in a place where the previous permission for change of the form and quality of a forest has become final and conclusive, and there is a substantial public interest aspect of preventing difficult development of mountain areas between mountain areas, and where a consultation for conversion of a mountainous district is made, it may result in a violation of Article 1 of the Mountainous Districts Management Act (amended by Act No. 11352, Feb. 22, 2012; hereinafter the same shall apply) and the above Supreme Court decision. ② The instant forest land, for which the lack of permission for development activities, is located in a mountain area adjacent to the world natural heritage, and is likely to seriously damage the ecosystem and the natural environment due to reckless development of mountain areas, according to Article 1 of the Enforcement Decree of the National Land Planning and Utilization Act (amended by Presidential Decree No. 13651, Apr. 18, 201, 201) [hereinafter the same]

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(i) the existence of procedural defects

In violation of Article 24 of the Civil Petitions Treatment Act (hereinafter referred to as the “Act”), Article 37(3) of the Enforcement Decree of the same Act (hereinafter referred to as the “Decree”), the Defendant, the head of an agency, did not preside over the Gu/Eup civil petition conciliation committee and have external legal experts or auditors participate, and did not notify the Plaintiff of the fact of holding the civil petition conciliation committee in violation of Article 37(6) of the Decree. In addition, the Defendant did not give the Plaintiff an opportunity to state his opinion in violation of Articles 21(1) and 22(3) of the Administrative Procedures Act while rendering the instant disposition.

2) A deviation, abuse, etc. of discretionary authority

The Supreme Court’s decision, which stated the reason for disposition, is related to the legality of the rejection of the alteration of the form and quality of a forest under the previous Forestry Act ( repealed by Article 2 of the Addenda to the Creation and Management of Forest Resources Act, Act No. 7678 of Aug. 4, 2005). The instant disposition cannot be used as the basis for the instant disposition, depending on the difference between the parties and construction areas. Even if the instant building is newly constructed in the instant forest, there is no concern about air pollution, water pollution, or ecosystem destruction, and there is no concern about causing harm because the average gradient of the instant forest is less than 10%. Moreover, there is also a fact that the Defendant already granted a building permit on the instant forest located in the vicinity of the instant forest, and thus, the instant disposition is in violation of the principle of equity and the principle of trust protection, and is thus deviating from or abusing the scope of discretion by excessively infringing the Plaintiff’s

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

1) First, we examine the Plaintiff’s assertion of illegality in the Plaintiff’s procedure.

According to Article 24 of the Act and Article 37 (1), (3), and (6) of the Decree, one of the one-time visit civil petition settlement procedures, the head of an administrative agency shall establish and operate a civil petition settlement committee comprised of the director general of the department in charge of treatment, the director general of the relevant department, external legal experts, and audit and inspection officers in principle in order to deliberate on and coordinate matters falling under the validity of the application of laws and regulations on civil petitions determined by the department in charge of treatment or the comprehensive council for practical affairs, and the deliberation on civil petitions based on complex civil petitions. The chairperson of the civil petition settlement committee shall notify in advance the civil petitioners of the meeting schedule, etc. so that the civil petitioners can attend when he/she holds a civil petition settlement committee: Provided, That if a civil petitioner desires or is unable to attend the committee in extenuating circumstances, a written statement of opinion

As above, the purport of the administrative agency to undergo deliberation by the civil petition coordination committee is to derive democratic intentions consistent with the public interest by faithfully reflecting the opinions of experts in the relevant civil petition affairs in the decision-making process of the administrative agency, secure fairness and transparency of administrative disposition, at the same time, establish the one-time visit civil petition coordination committee so as not to visit the administrative agency in an unnecessary manner, and further, it is based on the laws and Presidential Decree with legal nature, not only on administrative rules but also on the legal form but also on the matters that may affect the substantial contents of administrative disposition. In light of the fact that the contents of resolution following deliberation are not merely related to the form of the procedure, but also on the matters that may affect the substantial contents of the administrative disposition, barring special circumstances, if there are defects in the procedures for deliberation by the civil petition coordination committee as part of the administrative disposition, it shall not be deemed that such defects are not affected nor it is merely a minor. Thus, barring any special circumstance, it shall be a ground for revocation of administrative disposition.

However, in this case, in order to deliberate on whether to accept the application of this case, the defendant held a civil petition conciliation committee on February 16, 201, and failed to notify the petitioner in advance of the meeting schedule, etc., and deliberated on the civil petition conciliation committee without the plaintiff's attendance. The fact that the defendant did not separately give the plaintiff an opportunity to state his opinion in writing is not a dispute between the parties. Thus, the disposition of this case is deemed to exist without the legal procedure and the Presidential Decree to the extent that

In light of the above, the Defendant asserted that the instant disposition cannot be deemed unlawful even if the Plaintiff’s procedural defects exist in the deliberation of the Family Dispute Conciliation Committee, since the Plaintiff filed several complaints identical to the instant application, and the deliberation of the Civil Petitions Conciliation Committee itself pursuant to Article 37(2)3 of the Decree, the Defendant filed a report on the construction of the instant forest on April 27, 2007, the transfer of the instant disposition, and received the disposition of non-permission on the construction report and conversion of a mountainous district on March 8, 2010. Since the Plaintiff applied for a report on the construction of the instant forest on March 30, 201, and applied for a report on the construction of the instant forest on March 30, 2010 again, and applied for a report on the construction of the instant forest on March 5, 2010, the Defendant rejected the instant civil petition conciliation committee’s request on the grounds that the return of the instant request against the Anti-Corruption and Civil Rights Commission was unreasonable, the Defendant’s assertion that the instant civil petition was rejected.

2) Ultimately, the instant disposition has procedural defects that constitute grounds for revocation of the disposition, and thus, is unlawful without having to further examine the remainder of the Plaintiff’s assertion.

3. Conclusion

Therefore, the plaintiff's claim of this case is accepted on the grounds of its reasoning, and the judgment of the court of first instance is unfair on the grounds of its conclusion, and it is so decided as per Disposition by cancelling the disposition of this case and cancelling it.

[Attachment]

Judges Lee Jin-Gyeong (Presiding Judge)