[공유수면점용허가취소처분취소][공1985.7.15.(756),948]
(a) In a lawsuit seeking cancellation of an administrative disposition, if it is impossible to restore it to its original state, whether there is a benefit to seek cancellation of the disposition (negative);
B. Whether Article 14 of the Enforcement Decree of the Public Waters Management Act is excluded where there is a dispute between the parties (negative)
A. Since a lawsuit seeking the cancellation of an illegal administrative disposition is a lawsuit seeking the restoration to the original state by excluding an illegal state caused by the illegal disposition and protective measures against the rights and interests infringed or interfered with the disposition, there is no benefit to seek the cancellation, even if the illegal disposition is cancelled, if it is impossible to
(b) When a person who has obtained permission for occupancy and use of public waters intends to obtain an extension of the period, the application for permission for extension shall not be excluded even if there is any dispute between the parties concerned, which requires that the person concerned submit to the management agency one month prior to the expiration of the period.
(a) Article 1 of the Administrative Litigation Act;
[Judgment of the court below]
Samcheon City, Attorneys Kim Young-ro, Counsel for the defendant-appellant
Daegu High Court Decision 84Gu258 delivered on December 12, 1984
The appeal is dismissed.
The costs of appeal shall be borne by the plaintiff.
We examine the grounds of appeal.
A lawsuit seeking the cancellation of an illegal administrative disposition is a lawsuit seeking the restoration to the original state by removing the illegal state caused by the illegal disposition and protecting the rights and interests infringed or interfered with the disposition, so even if the illegal disposition is cancelled, there is no benefit to seek the cancellation if it is impossible to restore the original state.
According to the court below's lawful determination, the period for which the plaintiff finally extended the permission to occupy and use the public waters of this case from January 1, 1980 to December 31, 1982, and the suspension of execution of the administrative disposition of this case by the court below on October 21, 1981, the plaintiff's period of permission to occupy and use the public waters of this case continues to progress notwithstanding the revocation disposition, and it has already expired as of the closing date of argument of the court below. Thus, even if the disposition of this case is revoked, it cannot be said that there
In the case of this case, it is difficult to apply Article 14 of the Enforcement Decree of the Public Waters Management Act to the case where there is a dispute between the plaintiff and the defendant, and there is no obstacle to obtaining again permission to occupy and use public waters due to the cancellation of the disposition in this case, or Article 14 of the Enforcement Decree of the Public Waters Management Act provides that if a person who has obtained permission to occupy and use public waters intends to obtain an extension of the period, he/she shall submit an application for permission to the management agency one month prior to the expiration of the period, and the application shall not be excluded if there is a dispute between the parties concerned, and it shall not be employed since it is nothing more than an independent opinion without any legal basis to claim the exclusion of the application of the above provision prepared to prevent or reduce pollution and promote its use.
Therefore, the court below's decision which dismissed the plaintiff's lawsuit of this case against the interest of protecting the rights is just and it cannot be deemed that there is an error identical to the theory of lawsuit. 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 Park Jong-soo (Presiding Justice)