The period for filing an administrative appeal where the administrative agency notifies the period of appeal after the reasonable date has elapsed;

Articles 42(1) and 18(6) of the former Administrative Appeals Act (amended by Act No. 5000 of Dec. 6, 1995) provide that when an administrative agency takes a disposition in writing, it shall be obligated to notify the administrative agency of the period for filing an administrative appeal, etc. at the same time, and if an administrative agency violates this provision, it shall be interpreted that the administrative agency should be aware of the disposition, and it shall be deemed that the defect in the violation of the duty of disclosure at the time of the administrative disposition due to the minor period between the date of the administrative disposition and the date of the notification is cured, unless it can be deemed that the defect in the violation of the duty of disclosure at the time of the administrative disposition is cured.

Articles 18 and 42(1) of the former Administrative Appeals Act (amended by Act No. 5000 of Dec. 6, 1995)

wested land

The head of Yongsan-gu Seoul Metropolitan Government

Supreme Court Decision 96Nu14548 delivered on November 27, 1996

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

The Defendant’s disposition of imposition of KRW 1,096,250 of indemnity against the Plaintiff on July 1, 1995 shall be revoked.

1. Details of the disposition;

On December 10, 1981, the Plaintiff acquired 17-51 square meters of 17-2 site in Yongsan-gu Seoul Special Metropolitan City prior to the merger, and acquired 17-122 site in the same place on June 4, 1986, again, on July 19, 1988, the Plaintiff occupied and used the above 17-12 land after combining the above 17-122 land in the above 17-17-51 land, and occupied and used it, and 19.2 square meters of the above 17-192 site in the same Gu owned by the State adjacent to the above 17-122 land (hereinafter referred to as the “instant land”), and the Defendant did not have any dispute over the Plaintiff’s possession and use of the 9.2 square meters of the 17-192 site in accordance with the purport of the State Property Act and the purport of the No. 150-16, May 16, 1995.

2. Whether the lawsuit of this case is lawful

In full view of the statements and the whole purport of the argument as stated in Gap evidence 5-2, the plaintiff filed an administrative appeal with the Seoul Special Metropolitan City Mayor on July 1, 1995 after receipt of the notice for payment of indemnity of this case on October 28, 1995, and received a decision to dismiss the appeal on the ground that it was unlawful since it was filed after the time limit for the appeal was expired on December 28, 1995. The plaintiff asserted that the above administrative appeal filed within 180 days from the date of the disposition was legitimate since the defendant violated the duty of disclosure as to the fact that he could file an administrative appeal against the disposition of this case at the time of the disposition of this case and the duty of disclosure as to the procedure thereof. Accordingly, the defendant responded to the fact that the defendant may file an administrative appeal against the disposition of this case in accordance with the plaintiff's questioning after the disposition of this case.

Article 18(1) of the former Administrative Litigation Act (amended by Act No. 4770 of Jul. 27, 1994) provides that a revocation lawsuit may not be filed without going through a ruling where it is possible to file an administrative appeal against the disposition in question under the provisions of Acts and subordinate statutes. Article 3(1) of the Administrative Appeals Act provides that an administrative appeal may be filed against a disposition or omission of an administrative agency under this Act, except as otherwise provided in other Acts. The main sentence of Article 18(1) of the same Act provides that an administrative appeal shall, in principle, be filed within 60 days from the date on which the administrative agency becomes aware of the disposition, and Article 18(3) of the same Act provides that an administrative appeal shall not be filed after the lapse of 180 days from the date on which the disposition is made.

Meanwhile, Article 42(1) of the Administrative Appeals Act provides that if an administrative agency makes a written disposition, the other party shall be notified of whether he/she is able to file an administrative appeal concerning the disposition, the ruling agency, the procedure for passing the appeal, and the deadline for filing the appeal. Article 18(6) of the same Act provides that if the administrative agency fails to notify the period for filing an appeal, the administrative agency may file an administrative appeal within 180 days from the date of the disposition which is the period

In full view of the provisions of the above relevant Acts and subordinate statutes, where an administrative agency takes a disposition in writing, the administrative agency imposes an obligation to notify the other party of the procedure for filing an administrative appeal, including the period for filing an administrative appeal (Article 42(1) of the Administrative Appeals Act). If an administrative agency fails to notify the period for filing an administrative appeal, it shall be obliged to notify the administrative agency of the period for filing an administrative appeal at the same time as the administrative disposition is imposed, and if an administrative agency violates this provision, it shall be obliged to notify the administrative agency of the period for filing an administrative appeal, and if the administrative agency violates it, it shall be deemed that the administrative agency has complied with the procedure for making the notification after the date of the disposition, and it shall be deemed that the defect of the violation of the duty of disclosure at the time of the administrative disposition due to the minor period between the date of the administrative disposition and the date of the notification is cured, regardless of whether the notification is made, it shall be reasonable to interpret that the administrative agency should bear any disadvantage due to the prolonged period of filing an administrative appeal.

On the contrary, interpreting that an administrative appeal should be filed within 60 days from the date when the administrative agency becomes aware of a disposition, such as a case where the administrative agency notified the time period for filing an administrative appeal at the time of filing an administrative appeal, without notifying the time period for filing an administrative appeal at the time of filing an administrative appeal, is unreasonable as it is contrary to the purport of the Administrative Appeals Act that allows at least 60 days to have the time period for filing an administrative appeal at the time when the administrative agency becomes aware of the existence of the administrative disposition and the time period for filing an administrative appeal against the disposition. In such a case, not from the time when the administrative agency becomes aware of the existence of the administrative disposition, but from the time when it notifies the time period for filing an administrative appeal within 60 days from the time when the administrative agency notifies the time period for filing an administrative appeal, to limit the time period for filing an administrative appeal. Article 18(1) of the Administrative Appeals Act provides that "within 60 days from the time when the administrative agency becomes aware of the disposition", which is contrary to the purport of the Administrative Appeals Act.

However, in full view of the facts that the defendant, while taking the disposition of this case in writing, violated the duty of disclosure under Article 42 (1) of the Administrative Appeals Act at the time of the disposition, and Gap evidence 5-2, Eul evidence 4, and 5-2, and the whole purport of oral argument, the plaintiff received the notice of this case on July 1, 1995 and asked the defendant on the 22th of the same month who did not inform the procedure of appeal and calculation under Article 42 (1) of the Administrative Appeals Act about the procedure of the disposition of this case, along with the legal basis and calculation of the disposition of this case. The defendant asked the defendant on the 26th of the same month of the above questioning, and raised an objection as to the procedure of raising an objection on the legal basis and calculation of the disposition of imposition of indemnity on the 26th of the same month, within the period of 60 days from the date on which he received the above disposition of this case and the decision of rejection after 20 days after the date of questioning and the decision of rejection.

According to the above facts, the defendant's written disposition of this case, violated the duty of disclosure as provided by Article 42 (1) of the Administrative Appeals Act at the time of the disposition, and the plaintiff's 21 days after the date when the plaintiff became aware of the disposition of this case after being served with the notice of the disposition of this case, was asked by the plaintiff about the procedure of objection, and the plaintiff's request for administrative appeal can be made within 60 days after the due date of the notification of the administrative disposition." Thus, the plaintiff's request for administrative appeal cannot be viewed as legitimate performance of the duty of disclosure as provided by Article 42 (1) of the Administrative Appeals Act, and the plaintiff's request for administrative appeal can be made within 180 days after the date when the administrative disposition of this case was served in accordance with Article 18 (6) of the Administrative Appeals Act. Thus, the plaintiff's request for administrative appeal of this case was made within 180 days before the date of the administrative disposition of this case and within 195.10 days before the date of the decision of the administrative appeal of this case.

3. Whether the instant disposition is lawful

A. The parties' assertion

The defendant asserts that the disposition of this case's imposition of indemnity against the illegal occupation and use of State-owned land of this case is legitimate, since the land of this case was registered in the name of Japan since a certain period of time, and is owned by the State. The plaintiff asserts that the disposition of this case is unlawful for the following reasons.

(1) First, the land of this case was divided into 122 land from 17-51 land in Yongsan-gu Seoul, Yongsan-gu, Seoul, which had been registered under the name of Samman (Seoul), Japan, and the land of this case was divided into 17-122 land. The plaintiff purchased the above 17-51 land on November 23, 1981 and thereafter purchased the above 17-122 land on December 30, 198, and combined the above 17-122 land on December 30, 198. The plaintiff or the former owner knew that the part of the plaintiff's possession of the land of this case was included in the above 17-122 land, and eventually, the plaintiff had the right to claim for the transfer registration of ownership against the defendant, and thus the disposition of this case is unlawful.

(2) Second, in case where the property of a person (including his heir or successor) who has paid for a reasonable price in trust and acquired the right after the acquisition of the property by a person (including his heir or successor) is proved to be a state property and reverted to the State, no indemnity may be imposed on the land of this case under Article 51(1)1 of the State Property Act which provides that no indemnity shall be collected, and in addition, the possessor in good faith is not liable to return the profit gained from his possession to the owner under Article 201(1) of the Civil Act, so the disposition of this case is unlawful.

(b) Markets:

(1) Whether the Plaintiff has a claim for ownership transfer registration on the instant land due to prescriptive acquisition

In full view of Gap evidence 1, 2, Eul evidence 6, Eul evidence 1, Eul evidence 8, Eul evidence 1, Eul evidence 9-1, 2, and Eul evidence 10, Eul evidence 1, 2, and Eul evidence 10, and the whole purport of oral argument, the land of this case was divided into 17-122 land from 122 to 1966, and the land of this case was divided into 17-122 land from 17-122 and 17-6. The land of this case was registered as the land of this case, but it was not recorded in the register after it was divided into the above, and it was registered as the land of this case as the land of this case, which was owned by the government of the Republic of Korea on June 11, 1993, which was not owned by the government of this case, and it was not owned by the government of the Republic of Korea on March 26, 1994.

Meanwhile, in order to acquire prescription by possession, the Plaintiff should occupy it in a peaceful and public manner with the intention to own it for twenty (20) years (including the period of possession by the pre-owner). According to the above evidence, the Plaintiff purchased 17-51 square meters of a site from Non-Party 51 on December 9, 1981 after the aforementioned division from Non-Party 51, and completed the registration of ownership transfer on December 10 of the same year. On April 4, 1986, the Plaintiff purchased the above 17-12 site from Non-Party 17-122 site from Non-Party 1, and completed the registration of ownership transfer. On July 19, 1988, it was recognized that the Plaintiff occupied and used 9.2 square meters of the instant land adjacent to the above 17-122 land, but there was no other evidence to acknowledge that the Plaintiff had any other possession period including 9.2 square meters of the previous owner of the instant land for twenty (20) years.

Therefore, the Plaintiff’s assertion on the ground that the Plaintiff has a claim for ownership transfer registration based on the prescriptive acquisition of the land in this case is without merit.

(2) Judgment on the plaintiff's second argument

Article 51 (1) 1 of the State Property Act provides the exceptional grounds for the imposition of indemnity applies to cases where the property of the State is proved to be a legitimate owner of the title holder registered in the registry or other public record, and the right to such property is proved to be state property and reverted to the State after the acquisition of the property by the plaintiff or his successor. There is no evidence to acknowledge that the plaintiff or his successor has acquired the part of possession of the land of this case by paying the plaintiff's compensation. Rather, according to the above evidence, the plaintiff did not acquire the right to the portion of possession of the land of this case, but only acquired the ownership of adjacent land and possessed it without any title to the land of this case. Thus, there is no room to apply the provision of the State Property Act to protect the person who acquired the right to believe that the title holder registered in the public record is a legitimate owner

In addition, the argument that the plaintiff is not obligated to pay the indemnity pursuant to the provisions of Article 201 (1) of the Civil Act, which provides for the right to acquire the fruits from the bona fide possessor, is that the possessor in good faith who has the right to acquire the fruits pursuant to the provisions of the above Civil Act refers to the possessor in good faith, which has the right to obtain the fruits, and the possessor in good faith has the right to obtain the fruits, and there is only a reasonable ground to mislead him (see Supreme Court Decision 94Da27069 delivered on August 25, 195), and there is no evidence to acknowledge that the plaintiff occupied the part of the land of this case by mistake that he has a legitimate right to possess the part of the land of this case and that there is a legitimate ground for the mistake.

4. Conclusion

Therefore, the plaintiff's assertion that the disposition of this case is illegal is without merit, and there is no other ground for illegality of the disposition of this case. Thus, the disposition of this case is lawful. Therefore, the plaintiff's claim of this case seeking revocation on the ground that the disposition of this case is illegal is dismissed as it is without merit. It is so decided as per Disposition.

Judge Shin Shin-dae (Presiding Judge)