[건축허가취소처분취소][공1997.7.1.(37),1909]
Whether a formative decision has been made after filing an administrative litigation under Article 18(2) of the Administrative Litigation Act (negative)
A lawsuit seeking the revocation of an administrative disposition is filed on the ground that there is an urgent need to prevent a serious loss caused by the execution of the disposition, and the lawsuit seeking the revocation of the disposition was filed without going through an adjudication on the administrative appeal pursuant to Article 18(2)2 of the Administrative Litigation Act. If a formative adjudication has been made prior to the rendering of a judgment, "the revocation of the disposition by the administrative agency" was made in the administrative appeal procedure, the relevant disposition becomes retroactively null and void, and thus there is no legal interest in dispute over the validity of the relevant disposition.
Articles 12 and 18(2) of the Administrative Litigation Act
Supreme Court Decision 93Nu1879 delivered on April 12, 1994 (1994Sang, 1485) Supreme Court Decision 95Nu13692 delivered on May 28, 1996
Maximum (Attorney Choi Woo-soo, Counsel for defendant-appellant)
Hecheon-gun (Attorney Yoon Sang-ok, Counsel for the defendant-appellant)
Kim Jong-won et al.
Seoul High Court Decision 96Gu14526 delivered on October 30, 1996
The judgment of the court below is reversed. The part pertaining to the participation in the lawsuit among the total costs is assessed against the defendant, and the remainder is assessed against the defendant.
We examine the grounds of appeal.
1. On the first ground for appeal
According to the records, on June 14, 1994, the plaintiff filed an administrative appeal against the defendant for the cancellation of the above construction permit under Article 8 (8) of the Building Act (hereinafter "the disposition of this case"), and it is difficult for the plaintiff to seek the cancellation of the disposition of this case on May 6, 198, because it is hard for the plaintiff to seek for the cancellation of the disposition of this case, and it is also unlawful for the plaintiff to seek the cancellation of the disposition of this case without going through an administrative appeal under Article 8 (1) 9 of the Building Act (Article 8 (2) 1 of the Building Act, which is a disposition of this case, for the reason that it is impossible for the plaintiff to complete the construction work on April 29, 196 because it is not possible for the plaintiff to seek the cancellation of the disposition of this case, and it is also unlawful for the plaintiff to seek the cancellation of the disposition of this case without going through an administrative appeal under Article 8 (1) 9 of the Building Act (No. 4017, August 5, 1988).
Nevertheless, the court below's determination that the disposition of this case was unlawful and accepted the plaintiff's claim is unlawful, and there is a ground to point this out.
2. Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment of the court below is reversed, and it is recognized that the members are sufficient to render a direct judgment, the lawsuit of this case is dismissed for the above reasons. Of the total costs of lawsuit, the part pertaining to participation in the supplementary intervenor is borne by the defendant, and the remainder is decided as per Disposition with the assent of all participating Justices.
Justices Lee Yong-hun (Presiding Justice)