Daegu Metropolitan City Dong-gu (Attorney Visit-at-Law)

Korea Rail Network Authority (Law Firm Geum River, Attorneys Stabilization-hwan et al., Counsel for the plaintiff-appellant)

August 17, 2012

Daegu District Court Decision 201Guhap473 Decided October 19, 2011

1. The part of the judgment of the first instance against the plaintiff shall be revoked.

2. The part equivalent to KRW 502,071,860 of the disposition imposing indemnity of KRW 556,722,540 against the Plaintiff on December 2, 2010 shall be revoked.

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

1. Purport of claim

The Defendant’s disposition of imposition of indemnity of KRW 556,722,540 against the Plaintiff on December 2, 2010 shall be revoked.

2. Purport of appeal

The same shall apply to the order.

1. Details of the disposition;

A. Under the provisions of the Daegu Metropolitan City Ordinance on the Delegation of Administrative Affairs, the Plaintiff is a person delegated by Daegu Metropolitan City with construction works of roads and maintenance and management of roads, and the Defendant is a corporation established on December 31, 2003 under the Framework Act on Railroad Industry Development and the Korea Rail Network Authority Act for the purpose of contributing to the enhancement of citizens’ convenience in transportation and the sound development of the national economy by efficiently constructing and managing railroad facilities and performing other projects related thereto.

B. On September 1, 2009, the Defendant imposed and notified the Plaintiff of KRW 1,621,867,160 of the State Property Act on the ground that the Plaintiff occupied and used the entire land (hereinafter collectively referred to as “the entire land of this case”) of the Daegu-gu, Daegu-gu and 7 lots of land ( Address 2 omitted), and KRW 6,279 square meters (hereinafter referred to as “the entire land of this case”), and the Plaintiff filed an administrative appeal with the Central Administrative Appeals Commission on October 28, 2009 on the ground that the aforementioned disposition was defective in property value determination, and that the Defendant revoked the above disposition by applying the rate of property value of the entire land of this case pursuant to Article 72 of the State Property Act to the Plaintiff on the ground that the Plaintiff occupied and used the land ( Address 4 omitted), 5 omitted, ( Address 6 omitted), 7 omitted, ( Address 7 omitted), and ( Address 8 omitted) without permission for use. The Defendant applied the aforementioned rate of property value determination to the Central Administrative Appeals Commission.

[Reasons for Recognition] Uncontentious Facts, Gap evidence 5, Eul evidence 2 to 6, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff asserts that the disposition of this case is unlawful on the ground that "the defendant does not have the right to impose indemnity on the land of this case, which is administrative property, and since the land of this case, which was a railroad site, was constructed a new public facility on that ground by implementing an urban planning project in Daegu City, the land of this case is in accordance with Article 83 (1) of the former Urban Planning Act (amended by Act No. 3410 of March 31, 1981; hereinafter "former Urban Planning Act"), etc., without compensation to the plaintiff pursuant to Article 83 (1) of the former Urban Planning Act."

(b) Related statutes;

Attached Table 1 is as stated in the relevant Acts and subordinate statutes.

C. Determination

(1) First, according to Article 72(1) of the former State Property Act (amended by Act No. 10485, Mar. 30, 2011; hereinafter “former State Property Act”), the term “management agency, etc.” provides that an indemnity amounting to 120/100 of the usage fees or rent of the pertinent property shall be collected from an unauthorized occupant, as prescribed by Presidential Decree. According to Articles 8(3) and 9(1) of the same Act, “management agency, etc.” refers to a person delegated or entrusted with the management agency with the affairs of administration and disposal of general property pursuant to Article 42(1) of the same Act (not including a person entrusted with the management of administrative property pursuant to Article 29(1) of the same Act), and “management agency” refers to the head of a central government agency under Article 6 of the National Finance Act.

Meanwhile, according to Article 29(1) of the former State Property Act, an office of administration shall, if necessary for efficient administration of administrative property, entrust the administration of such property to a person other than a State agency. According to Articles 42(1) and 8(1) of the same Act, the Ministry of Strategy and Finance, which is the office of general administration, may entrust part of the affairs concerning administration and disposal of general property to a public official belonging to the office of general administration, an office of administration, the head of a local self-government organization

In full view of the above provisions, a person who is entitled to impose and collect indemnity against an illegal occupant of State property (Article 72(1) of the same Act provides that the term "collection of indemnity" may be referred to as "collection of indemnity," but the term "collection" shall be construed as a person entitled to impose and collect indemnity against an illegal occupant of the State property, unless it is difficult to present the person holding only the right to impose indemnity without the right to impose indemnity under the premise of the imposition of indemnity and it is not provided otherwise, the person entitled to collect indemnity under the above provisions shall be construed as a person entitled to impose and collect indemnity.) is limited to a person delegated or entrusted with the affairs concerning the administration and disposal of general property pursuant to Article 42(1) of the former State Property Act, and the person entrusted with the administration of State property pursuant to Article 29(1) of the same Act shall be construed as not having the right to impose and collect indemnity

However, even if the land of this case was entrusted with the management of the land of this case, it cannot be deemed that the defendant constitutes an "management agency, etc." subject to the imposition of indemnity under the former State Property Act, even if there is no dispute between the parties, or if the defendant was entrusted with the management of the land of this case, it cannot be deemed that the defendant constitutes an "management agency, etc." subject to the imposition of indemnity under the former State Property Act.

Therefore, the defendant's disposition of imposing indemnity of this case is illegal without examining it as a disposition by an unauthorized person.

(2) On this basis, the Defendant asserts that “The Office of Administration may, if necessary for the efficient management of administrative property, entrust the management of the property to a person other than a State agency, and according to Article 23(4) of the Framework Act on Railroad Industry Development, the Minister of Land, Transport and Maritime Affairs shall transfer the facility property of the Office of Railroad, the Office of Railroad, and other assets from the Administrator of the Office of Railroad according to the Railroad Asset Management Plan, and may entrust the management thereof to the Korea Railroad Facility Corporation, the Railroad Construction Corporation, relevant institutions and organizations, or private corporations prescribed by the Presidential Decree, or allow them to use or profit from the assets. According to Article 2 subparag. 3 of the former State Property Act, the term “management” refers to all acts for the acquisition, operation, maintenance and preservation of State property, and thus, the disposition of imposing indemnity is also included in the management act. Accordingly, the Defendant concluded a facility asset management entrustment agreement with the Minister of Land, Transport and Maritime Affairs, which is entrusted with the authority to collect indemnity regarding the railroad property including the instant land.”

However, according to Article 2 subparag. 3 of the former State Property Act, “management” refers to all acts for the acquisition, operation, maintenance, and preservation of State property, but it is difficult to say that the disposition of imposing indemnity, which cannot be directly related to the acquisition, operation, maintenance, and preservation of property, is included in its meaning. As seen earlier, Article 29(1) of the former State Property Act provides that, if necessary for the efficient management of administrative property, the office of administration may entrust the management of the property to a person other than the State agency, and Article 72(1) of the same Act provides that the person who is entrusted with the management of the “administrative property” under Article 29(1) of the former State Property Act explicitly excludes the person who is entrusted with the authority to impose indemnity from the person who is entrusted with the authority to impose indemnity. Thus, even if the Defendant was entrusted with the management of the land under the management consignment agreement between the Defendant and the Minister of Land, Transport, and Maritime Affairs, the above Defendant’s assertion is not legitimate.

(3) In addition, even if there is a legitimate right to impose indemnity on the Defendant for household affairs, since the land of this case at the time when the Plaintiff occupied and used the land of this case cannot be deemed State property in light of the following circumstances, the instant disposition against the Plaintiff based on this premise is unlawful.

In other words, according to Article 83 (1) of the former Urban Planning Act, where an executor who is an administrative agency installs new public facilities or public facilities replacing the existing public facilities by implementing an urban planning project, notwithstanding the provisions of the State Property Act and the Local Finance Act, the existing public facilities shall gratuitously belong to the executor and the new public facilities shall gratuitously belong to the State or a local government which is to manage such facilities. In addition, the public facilities prescribed in the above Act shall be deemed to fall under the property for public purposes prescribed in the State Property Act and the Local Finance Act, and whether they are the existing public facilities to be gratuitously reverted to the executor of an urban planning project shall be determined at the time of approval of the urban planning project. However, even if the actual state of use of the existing public facilities differs from the land category in the public land register at the time of approval, if the management agency did not abolish the existing public facilities and has managed the existing public facilities as property for public purposes under the State Property Act and the Local Finance Act, the existing public facilities shall still belong to the executor without compensation (see Supreme Court Decision

In this case, considering the overall purport of arguments in Gap evidence Nos. 9, 13, 14, 15, and Eul evidence Nos. 7, the land of this case was used as the railway site of the old Daegu Line. However, on November 18, 1974, the Gyeongbuk-do Governor approved the decision and land registration of the Daegu Urban Planning Road (Seoul Metropolitan City Notice No. 255) as to part of the land in the neighboring City including the land of this case to the Daegu City Mayor (Seoul Metropolitan City Notice No. 255), and the Daegu City Mayor may recognize the completion of the urban planning project on the land of this case where the railway site had implemented the urban planning project and completed the urban planning project on a small scale of eight meters wide on the land of this case, which had been a building site of this case, the land of this case could not be deemed to have been used as the new road site at the time of the implementation of the urban planning project, and the existing road construction and the new road construction site of this case, which had been substituted by the road management agency, as the new road of this case.

3. Conclusion

Therefore, the part of the plaintiff's claim for cancellation of the disposition imposing indemnity on the land of this case among the claims of this case is justified. Since the judgment of the court of first instance is unfair with a different conclusion, the part of the judgment of the court of first instance against the plaintiff among the dispositions of this case shall be revoked, and the decision of the court of first instance shall be revoked with a decision to revoke the disposition imposing indemnity amounting to 502,071,860

[Attachment Omission of Related Acts]

Judges Lee Jae-sung (Presiding Judge)

1) Since the Defendant did not file an appeal despite the fact that the Plaintiff’s claim was accepted in the judgment of the first instance court on the part concerning the land of Daegu Dong-gu ( Address 9 omitted), excluding the instant land among the entire land of this case, the part concerning the claim for the said land was excluded from the subject of a trial of the first instance.