Whether a lawsuit may be brought to the Supreme Court with respect to a dispute mediation decision by the Minister of Government Administration and Home Affairs or between the heads of local governments or the heads of local governments under Article 148(1) of the Local Autonomy Act, and a lawsuit seeking revocation of the dispute mediation decision itself, separately (negative)

In light of the contents and structure of Articles 148(4) and (7) and 170(3) of the Local Autonomy Act, and the legal nature of the conciliation decision on disputes between the heads of local governments or the heads of local governments under Article 148(1) of the Local Autonomy Act (hereinafter “resolution decision”), and the relationship between the dispute conciliation decision and the implementation order, etc., a lawsuit is filed with the Supreme Court regarding the decision of dispute conciliation by the Minister of Government Administration or the Mayor/Do Governor, and it is only possible to dispute the illegality of the decision of dispute conciliation in relation to the existence of the obligation to implement in the case, and it is not allowed under the Local Autonomy Act to file a lawsuit with the Supreme Court seeking revocation of the decision of dispute conciliation. Furthermore, it is difficult to view that the decision of dispute conciliation falls under the disposition subject to appeal under the Administrative Litigation Act in light of the other party or content, etc.

Article 148(1), (4), (7), Article 170(1) and (3) of the Local Autonomy Act; Article 2(1)1 of the Administrative Litigation Act

Seocheon-gun Gun (Law Firm LLC, Attorneys Man-mo, Counsel for defendant-appellant)

The Minister of Government Administration and Home Affairs (Law Firm Corporation, Attorneys Choi Treasury et al., Counsel for the plaintiff-appellant)

August 27, 2015

All of the instant lawsuits are dismissed. Costs of lawsuit are assessed against the Plaintiff.

In the first place, the part of the decision of the local government to which the land was reverted to the building site in Chungcheongnam-gu, Chungcheongnam-do, the Defendant’s Plaintiff, as of July 23, 2014, is revoked, the part of the “Seocheon-gun, Seocheon-gun,” which is “The amount calculated by multiplying the expenses incurred during the period from January 1, 2009 to June 16, 2014 by the size ratio occupied by Seocheon-gun, in accordance with the boundary decision of this case among the above 1,191 hectares, which was newly created for the management of the reclaimed farmland, shall be repaid equally for five years from the year 2015.” In the second place, the part of the decision of the local government to which the Defendant reverted the reclaimed land to the Plaintiff on July 23, 2014, the head of Seocheon-gu, Seocheon-gun-si, the implementation schedule was revoked by submitting the implementation schedule under Article 148(4) and (5) of the Local Autonomy Act to the State.”

1. Details of the decision of this case

The following facts are not disputed between the parties, or may be acknowledged by comprehensively considering the whole purport of the pleadings in the descriptions of Gap evidence 1, Gap evidence 2, and Eul evidence 6:

A. On January 24, 1985, Chungcheongnam-do, Chungcheongnam-do, with the approval of reclamation of public waters from the Minister of Agriculture and Forestry, implemented the project to reclaim public waters of 11,913,69.5 square meters (which was approved as 19,100,000 square meters per second, and later changed as above; hereinafter “instant reclaimed land”) in the area of public waters located between Chungcheongnam-do and Seocheon-gun, Chungcheongnam-do.

B. On May 8, 2012, the Minister for Food, Agriculture, Forestry and Fisheries filed an application with the Defendant for the determination of a local government to which the instant reclaimed land belongs. On July 23, 2014, the Defendant decided to vest the instant reclaimed land in the district of Bocheon-gun and Seocheon-gun (hereinafter “decision to vest in reclaimed land”) and made a decision to enter the primary purport of the claim that imposes some of the expenses for managing the existing reclaimed land borne by Bocheon-gun (hereinafter “decision to share the expenses”) on the part of the expenses for managing the reclaimed land (hereinafter “decision to share the expenses”).

C. Meanwhile, the Defendant, via the instant disposition, notified the Plaintiff of the instant disposition to the effect that “the procedures are conducted pursuant to Article 148(4) and (5) of the Local Autonomy Act and the implementation plan should be submitted pursuant to Article 86 of the Enforcement Decree of the same Act” (hereinafter “instant notice”).

2. Determination as to the legitimacy of the instant lawsuit

A. The main claim

(1) Legal nature of the determination of cost sharing

Local Autonomy Act provides that local governments to which reclaimed land pursuant to the Public Waters Management and Reclamation Act belongs shall be decided by the Minister of Government Administration and Home Affairs (Article 4(3)), and the head of the relevant local government may file a lawsuit with the Supreme Court within 15 days from the date of notification of the result of the decision (Article 4(8)).

Meanwhile, Article 148 of the Local Autonomy Act provides that when a dispute arises between local governments or between heads of local governments with different opinions (hereinafter “disputes”), the Minister of Government Administration and Home Affairs or the Mayor/Do Governor (hereinafter “Minister of Government Administration, Home Affairs, etc.”) may mediate upon the party’s application, etc. (Article 148(1)), the Minister of Government Administration and Home Affairs or the Minister of Government Administration, etc. shall immediately notify the head of the relevant local government of the decision of mediation in writing, and the head of the relevant local government so notified shall implement the decision of mediation (Article 148(4)), and the relevant local government shall preferentially compile the necessary budget for matters involving the budget among the decision of mediation, and shall report the annual implementation plan to the Minister of Government Administration

Of the decision of this case, the legal nature of the decision of cost sharing is examined.

Article 4(3) of the Local Autonomy Act only provides that the Defendant shall determine the local government to which the reclaimed land newly created belongs, and is irrelevant to the burden of expenses for the reclaimed land development project, and the expenses for the construction and management of the reclaimed land will be separately determined according to the project plan, and the expenses for the construction and management of the reclaimed land will normally be incurred after the determination on the reversion of the reclaimed land under the above provision, so it is difficult to say that the determination on the apportionment of expenses related to the reclaimed land is indivisible or ordinarily foreseeable. The Defendant itself requires the Plaintiff to implement the determination on the apportionment of expenses in accordance with the procedure for conciliation of disputes between the heads of the local governments or the heads of the local governments under Article 148(1) of the Local Autonomy Act (hereinafter “Dispute conciliation decision”). In light of the above, the determination on the apportionment of expenses is not a part of the determination on the reversion of reclaimed land under Article 4 of the Local Autonomy Act, but a dispute conciliation

(2) Whether a lawsuit seeking cancellation of a dispute mediation decision is legitimate

Article 148 (4) of the Local Autonomy Act provides that the head of a local government who is notified of a dispute mediation decision shall implement the matters of mediation decision, and Article 148 (7) of the Local Autonomy Act provides that the Minister of Government Administration and Home Affairs shall apply mutatis mutandis Article 170 of the Local Autonomy Act to order the performance of duties, such as delegated duties, if the matters of mediation decision are not faithfully implemented.

Meanwhile, Article 170(3) of the Local Autonomy Act provides that the head of a local government who is dissatisfied with an order to use land may file a lawsuit with the Supreme Court within 15 days from the date of receipt of the order to use land. However, the method of appeal against the dispute mediation decision is not separately

In light of the contents and structure of the provisions of the Local Autonomy Act, the legal nature of the dispute mediation decision, and the relationship between the dispute mediation decision and the implementation order, it is only possible to dispute the dispute mediation decision of the Minister of Government Administration and Home Affairs with the Supreme Court in order to order the subsequent implementation order, and then to dispute the illegality of the dispute mediation decision in relation to the existence of performance obligation in the relevant case. Furthermore, a lawsuit seeking cancellation of the dispute mediation decision itself should not be permitted under the Local Autonomy Act. Furthermore, in light of the other party or content, it is difficult to view that the dispute mediation decision constitutes a disposition subject to appeal under the Administrative Litigation Act

In light of the above legal principles, the part of the lawsuit in this case, for which the plaintiff seeks revocation on the ground of defects in the decision of sharing the burden of expenses, is unlawful as it is not legally allowed.

B. Preliminary Claim

The plaintiff sought the revocation of the instant notification, as it is based on the premise that the instant notification constitutes a performance order of dispute resolution under Article 148(7) of the Local Autonomy Act, and therefore, the legal nature of the instant notification is examined.

Article 148(7) of the Local Autonomy Act provides that a performance order may be issued if a dispute mediation decision is not faithfully implemented. However, in full view of the language and content of the instant notification, the Defendant’s background leading up to the instant decision, and the Defendant’s attitude after the instant decision was rendered, the instant notification given by the Defendant simultaneously with the instant decision is merely a statement of the contents of the provisions under the Local Autonomy Act concerning the determination of sharing of expenses, and it does not appear as a separate implementation order on the grounds that the Defendant neglected to implement the instant dispute mediation decision.

Therefore, this part of the lawsuit, based on the premise that this case’s notification constitutes an implementation of a dispute mediation decision, which is allowed to directly file a lawsuit with the Supreme Court pursuant to Articles 148(7) and 170(3) of the Local Autonomy Act, is unlawful.

3. Conclusion

Therefore, all of the instant lawsuits are dismissed, and the costs of lawsuit are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jo Hee-de (Presiding Justice)