[외국인토지취득허가취소처분취소][공1982.11.15.(692),951]
A. Whether it is reasonable to revoke the lawsuit on the land subject to permission between the plaintiff and the country for the acquisition of a foreign land right against the plaintiff in the middle of the pending trial
(b) The scope of examination of requirements under the Ordinance of the Ministry of Home Affairs when permission to acquire the rights of foreigners;
(c) Whether the ownership should be immediately lost unless the permission for acquisition of the right is obtained within the period prescribed in paragraph (2) of the Addenda to the Foreigner’s Land Acquisition Act
A. Since an administrative disposition revoking a permit is a disposition of deprivation of the existing benefits already acquired, there is a defect in the administrative disposition to be cancelled and there is a need for the public interest to cancel it. Accordingly, in the permission for the acquisition of foreign land rights against the plaintiff on the condition that ownership should be transferred within two months, the lawsuit pending between the plaintiff and the country cannot be considered as a defect in the above permit for acquisition, and thus, it does not constitute a reason for cancellation of the permit.
B. In a case where the acquisition of a right to land by a foreigner is permitted under Article 5(1) of the Foreigner’s Land Acquisition Act, the Minister of Home Affairs can only examine the formal requirements of the attachment of documents proving the acquisition of a right under Article 5(2)1 of the Enforcement Decree of the Foreigner’s Land Acquisition Act with respect to an act of acquiring a right to the land by a foreigner under private law, and it cannot be the reason for revocation of the above disposition on the ground that the use of the permit and the restriction under
C. Even if a foreigner did not obtain permission for acquisition of rights by July 3, 1969, within one year from the enforcement date of the Foreign Land Act, the foreigner would lose ownership by the time limit, not by the time limit, but by auction after the expiration of the prescribed period under the Foreign Land Act.
(a) Article 1(c) of the Administrative Litigation Act; Article 5(1) of the Foreigner’s Land Acquisition Act; Article 5-2(b) of the Act; Article 5(1) of the Addenda to the Foreigner’s Land Acquisition Act
Supreme Court Decision 70Da860,861 Delivered on December 22, 1970, 80Da1517 Delivered on February 10, 1981
Plaintiff
Attorney Jeong Byung-hee, Counsel for the plaintiff-appellant
Seoul High Court Decision 78Gu464 delivered on January 16, 1980
The appeal is dismissed.
The costs of appeal shall be borne by the defendant.
The defendant's attorney's grounds of appeal are examined.
1. Where an administrative disposition which causes certain profits to the other party such as permission has already been taken, the cancellation disposition is a separate administrative disposition which deprives the plaintiff of the existing benefits already acquired, and thus, the cancellation disposition must be defective in order to cancel it, and the public interest needs to be cancelled. Accordingly, according to the facts acknowledged by the court below, the defendant issued a disposition revoking the above permission on the land above July 13 of the same year on the condition that the plaintiff should sell the land of this case to the plaintiff within two months and complete the registration of transfer of ownership, on the condition that he should sell it to the plaintiff within two months and complete the registration of transfer of ownership, but the plaintiff and the Republic of Korea are pending in a lawsuit between the plaintiff and the Republic of Korea, but the fact that the lawsuit between the plaintiff and the Republic of Korea is pending is not a defect in the disposition of permission of acquisition of the foreigner's land rights to the plaintiff of this case, and therefore, the decision of the court below
2. In case where the Minister of Home Affairs permits a foreigner to acquire rights on land under Article 5 (1) of the Foreigner's Land Acquisition Act, the Minister of Foreign Affairs can only examine the formal requirements of the acquisition of rights on land by attaching documents to prove the acquisition of rights under Article 5 (2) 1 of the Enforcement Decree of the same Act with respect to the foreigner's act of acquiring rights. Further, there is no provision requiring submission of documents as to the use of a permit under the Foreigner's Land Acquisition Act or the Enforcement Decree of the same Act or the limitation under the Urban Planning Act with respect to the land. In the same purport, the court below's determination of whether the plaintiff's assertion of rights is true or not is a matter of judicial review, which is not directly related to the permission of this case or the cancellation of the permission, and it is just in the misapprehension of legal principles or inconsistent with the reasoning, and there is no error in the misapprehension of legal principles as to the plaintiff's application for the permission of this case's land acquisition from the non-party who asserted the plaintiff's acquisition of rights.
3. Where a foreigner did not obtain permission for acquisition of rights by July 3, 1969, within one year from the enforcement date of the Foreign Land Act, it does not immediately lose ownership by the deadline, and it would lose the right by auction after the lapse of the prescribed period under the Foreign Land Act (see, e.g., Supreme Court Decision 70Da860,861, Dec. 22, 1970; Supreme Court Decision 80Da1517, Feb. 10, 1981). Therefore, it is unreasonable to argue that the judgment of the court below is inconsistent with this Opinion.
Therefore, the appeal is dismissed and the costs of the appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Kim Young-ju (Presiding Justice)