(영문) 서울행정법원 2014.4.24. 선고 2012구합33638 판결

A. The Ministry of Land, Transport and Maritime Affairs granted a total of KRW 380.9 billion subsidies to Seoul Special Metropolitan City (hereinafter “Seoul Special Metropolitan City”) for the purpose of supporting the construction of national rental housing from December 31, 2002 to December 31, 2009.

B. Seoul Special Metropolitan City granted the said government subsidy to Plaintiff Es. Es. (hereinafter “Plaintiff Es.”) in the form of investment.

C. The Plaintiff Corporation used the above national subsidy received from Seoul Metropolitan Government as capital, constructed national rental housing, etc. for the purpose of granting subsidies, or acquired housing necessary for the purchased rental housing business, and indicated its financial status by indicating it as an increase in assets.

D. Meanwhile, from September 13, 2010 to October 29, 2010, the Board of Audit and Inspection conducted an audit on the actual status of the promotion of development projects of local public enterprises, including the Plaintiff Corporation, on nine urban development projects.

E. Article 64-2(1) of the Local Public Enterprises Act provides that the Board of Audit and Inspection shall process the accounts of a local government-invested public corporation in accordance with the corporate accounting standards in order to clearly grasp the management performance and financial status. Article 71 of the corporate accounting standards provides that the assets shall be acquired with the national subsidy appropriated for the acquisition of assets shall be deducted from the acquisition assets. Thus, the Board of Audit and Inspection determined that the assets shall be accounted in the form of deducting the national subsidy from the acquisition assets in accordance with the corporate accounting standards and clearly indicate the financial status after deducting the national subsidy from the acquisition assets. Based on this, the Board of Audit and Inspection decided that the Plaintiff 2, including the Plaintiff 2,000 won from 203 to 209, which received the national rental housing, etc. from the Ministry of Land, Transport and Maritime Affairs to 3,809,000 won (national rental housing, etc.) and that the amount of the national subsidy shall be deducted from the acquisition assets to the head of Seoul Government in accordance with the corporate accounting standards, etc., and that the corporate accounting ratio of the Plaintiff 2, 30009% and 5.

F. On May 23, 2011, the Plaintiff Mayor filed a request for review on the grounds that the demand of the Board of Audit and Inspection was unfair, and thus the revocation was requested. On July 10, 2012, the Board of Audit and Inspection deliberated on the application for review of the Plaintiff’s Seoul market and dismissed the application for review on the ground that “The capital is under the management of the Plaintiff’s Seoul market, and may be used without limitation in the place where corporate activities are required, such as acquisition of assets, repayment of debts, and payment of expenses, according to the free will of the company. However, the assets acquired with the Plaintiff’s national subsidy cannot be used for purposes other than the intended business and cannot be disposed of as it is the capital of the Plaintiff’s Corporation. Moreover, since the Seoul Government’s capital payment certificate clearly stated that it was the national subsidy limited to the use of specific purposes, such as the national rental housing construction subsidy, it shall be accounted in accordance

[Reasons for Recognition] Facts without dispute, Gap evidence 1, Gap evidence 2, Gap evidence 3-1, 2, Gap evidence 4-6, the purport of the whole pleadings

2. Whether the lawsuit of this case is lawful

A. The defendant's main defense

The Plaintiffs asserted that the demand for caution of this case is a compulsory exercise of public authority that directly affects the rights and obligations of interested parties, not merely notifying of facts, recommending to recommend facts, or presenting opinions, but rather is an exercise of public authority that directly affects the rights and obligations of interested parties, and thus, the demand for caution of this case does not constitute a disposition subject to appeal litigation, etc. Since Article 33(2) of the Board of Audit and Inspection Act provides that “the competent Minister, the head of the competent supervisory agency, or the head of the relevant agency, upon the request of the Board of Audit and Inspection, shall comply with it by the date determined by the Board of Audit and Inspection.” Accordingly, the Plaintiffs’ lawsuit

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination and ex officio determination on this safety defense

1) Determination on this safety defense

A) The issue of whether a certain act of an administrative agency can be the subject of an appeal cannot be determined abstractly and generally. In specific cases, an administrative disposition is a law enforcement with respect to specific facts conducted by an administrative agency as the subject of public authority, which directly affects the rights and obligations of the people. In mind, an administrative disposition should be determined individually by taking into account the content and purport of the relevant Act and subordinate statutes, the content, form, and procedure of the act, the actual relation between the act and disadvantage suffered by interested parties, such as the other party, and the principle of administration by the rule of law, the attitude of the administrative agency and interested parties related to the pertinent act, etc. (see, e.g., Supreme Court en banc Decision 2008Du167, Nov. 18

B) As such, an administrative disposition refers to an act that is directly related to the rights and obligations of the citizens. Thus, an act that does not directly change legal status of the other party or related persons, such as an act, arrangement, solicitation, and de facto notification, etc. inside the administrative agency, cannot be subject to appeal litigation (see, e.g., Supreme Court Decision 96Nu6202, Jul. 10, 198). Therefore, an act of an administrative agency, interim disposition, or between administrative agencies, in principle, cannot be deemed an administrative disposition that is subject to appeal litigation. However, even an interim disposition, if it is directly related to the legal interest of the people, such as a limitation on the rights of the people

C) Examining the aforementioned basic facts based on the structure and contents of the Board of Audit and Inspection Act, the following points are revealed.

① According to Article 97 of the Constitution, the Board of Audit and Inspection is an institution established under the jurisdiction of the President to settle accounts of the State’s revenue and expenditure, audit of the accounts of an organization as prescribed by the State and Act, and audit of the duties of administrative agencies and public officials. However, in Part IV of the Constitution, the Board of Audit and Inspection of the Republic of Korea and Part II of the Board of Audit and Inspection of the Government and Part IV of the Ministry of Administration and Inspection of the Ministry of Government Administration and Home Affairs are prescribed in parallel with other State agencies and public agencies. There is no provision

(2) According to Article 2(1) of the Board of Audit and Inspection Act, the Board of Audit and Inspection shall belong to the President, and shall have a position as able to perform its duties. This means that the Board of Audit and Inspection shall not belong to the President as an administrative revenue team, but shall belong to the President as the head of the State. This means that the Board of Audit and Inspection does not interfere with other agencies in exercising the right to settle accounts, audit and inspection, and inspection of the duties of administrative agencies and public officials, and that the Board of Audit and Inspection shall not interpret that it

③ According to Article 33(1) of the Board of Audit and Inspection Act, the Defendant requested each attention to the Plaintiff, the president of the Plaintiff, and the head of the supervisory organ, who is the head of the relevant institution, pursuant to Article 33(2) of the Board of Audit and Inspection Act, and the Seoul Special Metropolitan City Mayor requested the Defendant to review the request for disciplinary punishment pursuant to Article 36(2) of the Board of Audit and Inspection Act, and the Defendant dismissed the request for reexamination. Article 33(2) of the Board of Audit and Inspection Act provides that the relevant Minister, the head of the supervisory organ, or the head of the relevant institution shall implement the request by the Board of Audit and Inspection by the date determined by the Board of Audit and Inspection. However, the Defendant consistently states that, notwithstanding Article 33(2) of the Board of Audit and Inspection Act, there is no obligation to comply with the request for attention, and that it may not be forced even if he/she fails to comply therewith. In fact, the Board of Audit and Inspection Act does not have any grounds or penal provisions that any disadvantage may be imposed or infringed upon rights.

④ In particular, the demand for the State of this case is that “the national subsidy that has been processed differently from the corporate accounting standards shall be deducted from the assets and capital, and the national subsidy shall be thoroughly carried out in accordance with the above standards in the future.” However, “the national subsidy that has been processed differently from the corporate accounting standards shall be deducted from the assets and capital” shall be implemented by the date determined by the Board of Audit and Inspection pursuant to Article 33(2) of the Board of Audit and Inspection Act, but the Board of Audit and Inspection shall not set the period for implementation. Meanwhile, the said demand for the State of this case “I would like to thoroughly carry out the accounting of the national subsidy according to the above standards” is of a nature as the presentation of the standards for the future accounting affairs, and it cannot be said that the Plaintiffs

⑤ The Plaintiffs asserts that there is no way to dispute the demand of the State in this case even in the absence of an administrative disposition. However, Article 40(2) of the Board of Audit and Inspection Act provides that the Board of Audit and Inspection may institute an administrative litigation with respect to the judgment on a retrial made by the Board of Audit and Inspection as a party, and does not necessarily require to be interpreted as an administrative litigation under the above provision. In other words, the Plaintiffs may sufficiently contest that the request of the State in this case is unreasonable through a lawsuit seeking confirmation that the Board of Audit and Inspection as the Defendant does not have an obligation to comply with the demand of the Board of Audit and Inspection, which belongs to the party litigation in public law, pursuant to Article 40(2) of the Board of Audit and Inspection Act without the need to form an administrative disposition (in this case, the Defendant of the party lawsuit in public law

D) In full view of the aforementioned circumstances, the decision on the request for attention or review of the instant case is merely an internal decision-making act between administrative agencies and thus cannot be deemed an administrative disposition that is subject to appeal litigation.

2) Determination on plaintiff's standing to sue in the Seoul market

A) Furthermore, we examine ex officio whether the Plaintiff market is a party to the case.

B) An appeal litigation under the Administrative Litigation Act is filed against an administrative agency’s “disposition, etc.” or omission (Article 3 subparag. 1 of the Administrative Litigation Act). Since Article 8(2) of the Civil Procedure Act applies mutatis mutandis to an administrative litigation pursuant to Article 8(2) of the Administrative Litigation Act, an administrative litigation is required to have the general capacity to be the subject of the litigation, as in the civil litigation, to file an appeal litigation. Therefore, natural and juristic persons and juristic persons generally recognized as the subject of the litigation, and unincorporated associations or foundations may be a plaintiff in an appeal litigation. However, an administrative agency without the capacity to become a plaintiff in an appeal litigation, barring special provisions in relevant Acts and subordinate statutes, the Plaintiff-gu Seoul Special Metropolitan City Mayor, which is merely an administrative agency without the capacity to become a party, may not file an appeal litigation seeking the revocation of the decision in this case as a direct party to the other party, unless there is a special provision in the relevant Acts and subordinate statutes. However, in exceptional cases such as where one party directly provides for significant disadvantage, such as an administrative fine or criminal punishment, etc.

C) However, as seen earlier, there is no ground to deem that there is no disadvantage or infringement of rights on the plaintiff market et al. who did not comply with the review decision by the Board of Audit and Inspection.

Therefore, it cannot be viewed that the principal of Seoul Metropolitan Government can be recognized as a party ability.

3) Determination on the plaintiffs' assertion as to the legitimacy of the lawsuit of this case

A) As to the legitimacy of the instant lawsuit, the Plaintiffs asserted that the Defendant’s defense on the instant lawsuit was raised, and accordingly, the instant lawsuit constitutes an institutional lawsuit that may be brought in cases where there is a dispute over the existence or exercise of authority between the two agencies pursuant to Article 40(2) of the Board of Audit and Inspection Act.

B) According to Article 3 subparag. 4 of the Administrative Litigation Act, an agency litigation is a lawsuit filed against a dispute over the existence or exercise of authority between the State or a public organization. Meanwhile, according to Articles 3 subparag. 4 and 45 of the Administrative Litigation Act, an agency litigation may be instituted only when there is a dispute over the existence or exercise of authority between the State or a public organization’s agencies, and where there is a dispute over the existence or exercise of authority between the State or a public organization’s agencies, the agency litigation is governed by the so-called agency litigation principle by stipulating that it may be instituted only by a person prescribed by law in the case of a dispute over the existence or exercise of authority. However, in full view of the form and content of Article 40(2) of the Board of Audit and Inspection Act and the structure of relevant regulations, Article 40(2) of the Board of Audit and Inspection Act cannot be deemed as a provision allowing the Plaintiff’s head of Seoul Metropolitan Government to bring an agency litigation against the Board of Audit and Inspection.

D. Ultimately, the lawsuit of this case filed by the plaintiffs is not subject to appeal litigation (in particular, the plaintiff Seoul market does not have standing to sue in an appeal litigation) and is not subject to agency litigation, and it is unlawful.

3. Conclusion

Therefore, since the lawsuit of this case is unlawful, it is so decided as per Disposition by the assent of all.