[1] In a case where an administrative agency did not give the party prior notice or give an opportunity to present opinions under the Administrative Procedures Act while taking an infringing administrative disposition, whether the disposition is unlawful (affirmative in principle)

[2] Meaning of Article 13 subparag. 2 of the Enforcement Decree of the Administrative Procedures Act (hereinafter “Enforcement Decree”), where it is objectively proven that the facts constituting the premise of the disposition are objectively proven and the hearing of opinions is unnecessary due to the administrative agency’s decision, etc. that goes through a court’s trial or quasi-judicial procedure, and where it is proved only that the facts constituting the premise of the disposition, or where the level of the disposition can vary depending on the hearing of opinions, whether the above exception is applicable

[3] In a case where the competent Mayor ordered Gap to take the first and second measures to dispose of wastes in a long-term storage on the land pursuant to Article 48 subparagraph 1 of the former Wastes Control Act, and the judgment of conviction was finalized as a violation of the former Wastes Control Act due to Gap's failure to take the above measures, and thereafter the competent Mayor issued the third order for the disposal of wastes without any separate prior notice or hearing of opinions, the case holding that the third order for the disposal of wastes does not constitute an exception to prior notice or hearing of opinions under Article 13 subparagraph 2 of the Enforcement Decree of the Administrative Procedures Act as discretionary action

[1] Articles 21 and 22 of the Administrative Procedures Act provide for prior notification and hearing of opinions as to administrative procedures. In cases where an administrative agency imposes an obligation on a party or imposes a restriction on his/her rights and interests, it shall notify the party concerned, etc. of the prior notification and hearing of his/her opinion in advance (Article 21(1) of the Administrative Procedures Act). Accordingly, where an administrative agency imposes an obligation on a party or imposes a prior notification or hearing of opinions, such prior notification or hearing of opinions may not be given only in cases where it does not provide for the party concerned with an opportunity to present his/her opinion in advance (Article 21(4) and 22(4)). Therefore, the administrative agency’s prior notification or hearing of opinions may not be given if it does not provide the party concerned with an opportunity to present his/her opinion, or if it does not provide the party with an opportunity to present his/her opinion in advance (Articles 21(4) and 22(4)).

[2] When interpreting the contents of Articles 21 and 22 of the Administrative Procedures Act and Article 13 of the Enforcement Decree of the Administrative Procedures Act comprehensively and systematically in light of the legislative purpose of the Administrative Procedures Act and the purport of the system for hearing opinions, the phrase “where it is objectively proven that the facts constituting the premise of the disposition in accordance with the court’s trial or the decision of an administrative agency that goes through quasi-judicial procedures are unnecessary to hear the opinion in accordance with the disposition” under Article 13 subparag. 2 of the Enforcement Decree of the Administrative Procedures Act refers to cases where the hearing of opinions does not affect the administrative agency’s disposition or its water level determination, such as where an administrative agency must take a certain disposition if it objectively proves that the facts constituting the premise of the disposition are based on the court’s trial, etc.

[3] In a case where the competent Mayor ordered Gap to take the first and second measures to dispose of wastes on a long-term basis pursuant to Article 48 subparagraph 1 of the former Wastes Control Act (amended by Act No. 1341, Jul. 20, 2015; hereinafter “Waste Control Act”), and Gap failed to take the above measures, and thus the court found Gap guilty of violation of the Wastes Control Act was found guilty, and the court ordered Gap to take the third measures on the disposal of wastes without undergoing separate prior notice and hearing of opinions, the case held that Gap was ordered to take the first and second measures from the competent market prior to the third order, and even if the judgment became final after being convicted of the violation of the above measures, it is difficult to conclude that the first and third measures order did not constitute “the third order order to take measures” under Article 48 subparagraph 1 of the former Wastes Control Act, and thus, it is objectively proved that the second order to take measures, including the second order from the time of the second order to the date of the conviction due to nonperformance of the order to take measures, and it is objectively proven that “the third order to be objectively discharged.”

[1] Articles 21 and 22 of the Administrative Procedures Act / [2] Articles 1, 21, and 22 of the Administrative Procedures Act; Article 13 subparagraph 2 of the Enforcement Decree of the Administrative Procedures Act / [3] Articles 48 and 48-2 of the former Wastes Control Act (Amended by Act No. 1341, Jul. 20, 2015); Articles 21 and 22 of the Administrative Procedures Act; Article 13 subparagraph 2 of the Enforcement Decree of the Administrative Procedures Act

[1] Supreme Court Decision 2016Du41811 Decided October 27, 2016 (Gong2016Ha, 1824)

Plaintiff (Law Firm Hho, Attorneys Labor-Promotion et al., Counsel for the plaintiff-appellant)

Seosan Market (Law Firm Jung-do, Attorney Lee Han-cheon, Counsel for defendant-appellant)

Daejeon High Court Decision 2017Nu12078 decided September 28, 2017

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

The grounds of appeal are examined.

1. Case overview and key issue

A. According to the reasoning of the lower judgment and the record, the following facts are revealed.

(1) On August 12, 2009, the Defendant ordered the Plaintiff to take the first order to dispose of wastes in the long-term storage in the land unit ( Address 1 omitted) (hereinafter “instant land”) pursuant to Article 48 Subparag. 1 of the former Wastes Control Act (amended by Act No. 13411, Jul. 2015; hereinafter “the Wastes Control Act”). On July 22, 2010, the Plaintiff was convicted of having been convicted of having committed an offense in violation of the Wastes Control Act (one hundred months of imprisonment, two years of suspended execution, and one hundred and twenty hours of community service order), and the said judgment was finalized on September 8, 201.

(2) On June 19, 2013, the Defendant issued a second order to order the Plaintiff to properly dispose of wastes neglected on the instant land. On May 9, 2014, the Plaintiff was convicted of committing a crime of violating the Wastes Control Act (one year of imprisonment, two years of suspended execution, two hours of community service order), and the said judgment became final and conclusive on April 3, 2015.

(3) Since then, the public officials in charge of the Defendant urged the Plaintiff to dispose of the instant wastes as soon as possible by telephone or face-to-face talking with the Plaintiff, but the Plaintiff expressed its intent not to dispose of the instant wastes.

On June 26, 2015, the Defendant issued a three-dimensional order (hereinafter “instant disposition”) under Article 48 Subparag. 1 of the Wastes Control Act to the Plaintiff, stating that “by October 30, 2015, the Plaintiff shall properly dispose of wastes neglected for a prolonged period of time” (hereinafter “instant disposition”).

B. The key issue is whether the instant disposition is invalid due to procedural defect that erroneously designated the other party or violated the obligation to give prior notice and hear opinions.

2. Whether the instant disposition is invalid due to a defect that erroneously designated the other party to the disposition (ground of appeal No. 2)

The lower court rejected the Plaintiff’s assertion that the instant disposition was null and void due to the defect that erroneously designated the other party. The Plaintiff constitutes “a person who treats wastes” as prescribed by Article 48 subparag. 1 of the Wastes Control Act, and thus may be the other party to the order to take measures to dispose of wastes. The Defendant did not order the Nonparty to dispose of the instant wastes, on the sole ground that the instant disposition against the Plaintiff was not unlawful.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err by misapprehending the legal doctrine regarding defects that erroneously designated the other party to the disposition.

3. Whether the instant disposition is invalid due to procedural defects (ground of appeal No. 1)

A. Whether the instant disposition is null and void due to procedural defects on the presentation of grounds

For the following reasons, the lower court determined that there was no procedural defect in the instant disposition. The grounds for the instant disposition and the relevant statutes of the disposition are specified in both the grounds for the disposition and the instant disposition. The Plaintiff also knows that the “( Address 1 omitted) Won” stated in the instant disposition disposition includes not only the land ( Address 1 omitted), but also the area within a certain scope surrounding it, and includes the land ( Address 2 omitted) in Seosan City.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower judgment did not err by misapprehending the legal doctrine regarding the presentation of grounds for disposition.

B. Whether the instant disposition is null and void due to procedural defects related to prior notice or hearing of opinions

(1) Whether prior notice or hearing of opinions can be omitted

(A) If the Minister of Environment, the Mayor/Do Governor, or the head of a Si/Gun/Gu intends to issue an order to take measures to dispose of wastes pursuant to Article 48 of the Wastes Control Act, he/she shall give the person subject to such order an opportunity to inform of the reason and present his/her opinion in advance, except where it is urgently required for environmental conservation, such as the protection of water sources, etc. (Article 48-2 of the Wastes Control Act). The Wastes Control Act does not provide more specific

Meanwhile, Articles 21 and 22 of the Administrative Procedures Act regarding administrative procedures provide for prior notification and hearing of opinions as to the administrative procedures. In cases where an administrative agency imposes an obligation on a party or imposes a disposition restricting his/her rights and interests, it shall notify the party concerned, etc. of the prior notification or hearing of his/her opinion (see Articles 21(4) and 22(4) of the Administrative Procedures Act), “the fact causing the relevant disposition and the legal basis for the disposition,” “the method of handling the submission of his/her opinion,” “the name and address of the agency proposing opinions,” “the deadline for submitting opinions,” etc. In cases where other Acts and subordinate statutes are essential or do not provide for a public hearing (see Article 21(1)), the relevant party, etc. shall be given an opportunity to present his/her opinion (see Articles 22(3)): Provided, That a prior notification or hearing of opinion may not be given only where the relevant administrative agency did not provide the party with an opportunity to present his/her opinion in advance (see Articles 21(4) and 222(4).16).

Articles 21(4) and 22(4) of the Administrative Procedures Act lists “Where an urgent measure is required for the safety or welfare of the public” (Article 21(4)1); “where a certain measure is not or is extinguished if a person does not have any qualification required by any Act or subordinate statutes, etc. and it is objectively proved by a court’s trial, etc. (Article 21(4)2)” and “where there is a reasonable ground to believe that the hearing of opinions is considerably difficult or clearly unnecessary due to the nature of the pertinent disposition,” and Article 21(5) of the Administrative Procedures Act lists “where a prior notice under paragraph (4) is not required for the sake of public safety or welfare” (Article 21(4)2). Furthermore, Article 13(5) of the Enforcement Decree of the Administrative Procedures Act provides that “Where a court’s prior notice under Article 21(4) of the Administrative Procedures Act is objectively unnecessary due to a court’s determination or quasi-decision based on Article 21(4)21(4)5) of the Administrative Procedures Act.”

The purpose of the Administrative Procedures Act is to ensure fairness, transparency, and reliability in administration and to protect the rights and interests of the people by providing common matters concerning administrative procedures and allowing citizens to participate in administrative procedures (Article 1). The hearing system of opinions is to consider the possibility of correction of illegal grounds and to ensure prudence and appropriateness of dispositions by granting the parties an opportunity to submit materials favorable to the grounds for administrative dispositions.

In light of the legislative purpose of the Administrative Procedures Act and the purport of the system for hearing opinions, if the contents of the provisions of the Administrative Procedures Act are comprehensively and systematically interpreted, “where the facts constituting the premise of the disposition are objectively proven according to the court’s judgment or the decision of an administrative agency that goes through a quasi-judicial procedure and the hearing of opinions is unnecessary” under Article 13 subparag. 2 of the Enforcement Decree of the Administrative Procedures Act means cases where the hearing of opinions does not affect the administrative agency’s disposition or the determination of the level thereof, such as where the administrative agency must take a certain disposition if objectively proven that the facts constituting the premise of the disposition according to the court’s judgment, etc., are objectively proven. This does not constitute the foregoing exception if it is proved only that the “part” constituting the premise of the disposition, or

(B) Examining the factual basis in light of the aforementioned legal doctrine, the instant disposition cannot be deemed as constituting “a case where the facts constituting the premise of the disposition are objectively proven and the hearing of opinions is unnecessary due to the administrative agency’s decision that goes through a court’s trial or quasi-judicial procedure” under Article 13 subparag. 2 of the Enforcement Decree of the Administrative Procedures Act. The reasons are as follows.

The instant disposition orders the Plaintiff to properly dispose of the instant wastes neglected on the instant land for the reason that the Plaintiff did not properly dispose of the said wastes. Even if the Plaintiff was sentenced to the first and second order prior to the instant disposition, and the judgment became final and conclusive after having been convicted of the facts constituting a non-performance of each of the above orders in criminal proceedings, there is room for change in circumstances as there is a time difference since not only from the time of the second order, but also from the time of the final judgment of conviction due to the non-performance of the second order, there is a time interval between the time of the instant disposition and the time after the judgment became final and conclusive. According to the foregoing conviction, it may be deemed objectively proved that “the Plaintiff was given the first and second order to take the first order to take the instant measures by leaving the wastes neglected,” but it is difficult to conclude that “the instant wastes neglected on the instant land at the time of the instant disposition is objectively proven by the grounds for disposal.”

In addition, Article 48 of the Wastes Control Act, which is a law based on the instant disposition, provides that “it may issue an order to take necessary measures, such as waste disposal,” and in light of the language and structure of such provision, the order to take measures under this provision constitutes discretionary action. Therefore, if the facts constituting the premise for the instant disposition are objectively proven according to the court’s trial, etc., it is difficult to deem that the instant disposition constitutes a case where hearing opinions do not affect the administrative agency’s determination of disposal or its level.

(C) Nevertheless, the lower court determined that the instant disposition constitutes an exception to prior notification and hearing of opinions as prescribed by Article 13 subparag. 2 of the Enforcement Decree of the Administrative Procedures Act. In so doing, the lower court erred by misapprehending the legal doctrine on prior notification and hearing of opinions as prescribed by the Administrative Procedures Act. However, as long as the lower court’s conclusion rejecting the Plaintiff’s claim seeking nullification of the instant disposition is justifiable, the lower court’s error did not adversely affect the conclusion of the judgment, and thus, the

(2) Whether the instant disposition is null and void

Even if the Defendant did not provide the Plaintiff with an opportunity to present his/her opinion without justifiable grounds in the course of the instant disposition, in light of the relevant legal principles (see Supreme Court en banc Decision 2010Du10907, Feb. 16, 2012), the instant disposition cannot be deemed null and void.

Although the reasoning of the lower judgment is partially inappropriate, the lower court’s conclusion that rejected the Plaintiff’s claim seeking confirmation of invalidity of the instant disposition was based on the legal doctrine as seen earlier, and did not err by misapprehending the legal doctrine on the grounds for invalidation of administrative disposition, contrary

4. Conclusion

The Plaintiff’s appeal is dismissed as it is without merit, 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.

Justices Lee Dong-won (Presiding Justice)