[2] Where a disposition continues to exist effectively, whether the need to protect the right to file a revocation suit is recognized (affirmative in principle)

[3] Whether there is a legal interest in seeking cancellation of the disposition of factory building permit for neighboring residents in a case where an action was revoked for the reason that the approval of factory establishment in a development restriction zone was illegal, but the disposition of factory building permit based on the approval remains (affirmative)

[2] The latter part of Article 12 of the Administrative Litigation Act provides that “A person who has a legal interest restored by the cancellation of a disposition, etc., even after the effect of the disposition, etc. is extinguished due to the lapse of a period, the execution of the disposition, etc., or any other cause, may file a lawsuit seeking revocation.” In a case where the need for the protection of rights is recognized for an already extinguished administrative disposition, the filing of a lawsuit seeking revocation is allowed. In a specific case, determination of the necessity for the protection of rights should take into account the purport of Article 27(1) of the Constitution guaranteeing the citizens’ right to a trial and the purpose of the Administrative Litigation Act to effectively relieve the infringement of rights due to an administrative disposition in light of the purpose of Article 27(1) of the Constitution guaranteeing the citizens’ right to a trial and the purpose of the Administrative Litigation Act to effectively relieve the infringement of rights due to the existence of an administrative disposition, as well as the request for remedying the infringement of rights. Therefore, where the disposition continues

[3] In full view of the provisions of Articles 13(1), 13-2(1)16, 14, 50, and 13-5 subparag. 4 of the former Industrial Cluster Development and Factory Establishment Act (amended by Act No. 9426 of Feb. 6, 2009), it is permissible to take a disposition of approval of factory construction after or at the same time to take a disposition of permission of factory construction. Thus, if the approval of factory construction is revoked, a disposition of permission of factory construction based on the approval should be revoked, and where a change of form and quality of land is made based on the approval of factory construction, a disposition of permission of factory construction based on the approval should be restored. Therefore, even if a disposition of approval of factory construction within a development-restricted area is revoked on the ground that it is illegal, it cannot be concluded that the situation or risk of infringing on the environmental interest of neighboring residents was terminated or a correction was made, and neighboring residents still have legal interest in seeking revocation of the approval of factory construction permission.

1. As to the legal interest to seek the cancellation of the factory building permit disposition

A. A third party, who is not the other party to an administrative disposition, filing a revocation lawsuit on the ground that his/her environmental interests are infringed or are likely to be infringed upon by the administrative disposition, is recognized as standing to sue to prove that his/her environmental interests are individually, directly and specifically protected by the relevant laws and regulations or relevant laws and regulations (see, e.g., Supreme Court Decision 2006Du14001, Dec. 22, 2006). In addition, the latter part of Article 12 of the Administrative Litigation Act provides that “Where a person has legal interests recovered from the cancellation of the disposition, etc. even after the effect of the disposition, etc. is extinguished due to the lapse of the period, the execution of the disposition, etc., or for other reasons, the revocation lawsuit may be instituted where the need to protect the rights and interests of the public is recognized. In determining whether there is a need to protect the rights and interests of the public regarding the already extinguished administrative disposition, the case where a practical infringement of rights and interests of the public can be deemed to exist should be considered in light of the purport and purpose of Article 27(1).

B. According to the former Industrial Cluster Development and Factory Establishment Act (amended by Act No. 9426, Feb. 6, 2009; hereinafter “former Industrial Cluster Act”), in order to newly build, expand, or change a factory with a factory construction area of at least 500 square meters (hereinafter “factory establishment, etc.”), approval from the competent authority shall be obtained as prescribed by the Presidential Decree (Article 13(1)); and a person who has obtained approval for factory establishment, etc. may construct a new factory building upon receipt of a construction permit or report under the Building Act or constructive fiction of a construction permit or report (Articles 13-2(1)16, 14, and 14). Furthermore, the competent authority may not grant a permit for construction, business, etc. of a factory under the relevant Act and subordinate statutes to a person who has not obtained approval for factory establishment, etc., and where it deems it difficult for a person who has obtained approval for factory establishment, etc. to implement the relevant project for a reason different from that approved without justifiable grounds, etc., he/she may cancel the approval under Article 13(4).

Comprehensively taking account of the above provisions, it is permissible to take a disposition of approval of factory construction and to take a disposition of permission of factory construction at the same time. In the event that the disposition of approval of factory construction is revoked, the disposition of permission of factory construction based on the approval disposition should also be revoked, and where changes in the form and quality of land are made based on the approval of factory construction in the development-restricted area, it is in principle to restore the original state. Therefore, even if the disposition of approval of factory construction in the development-restricted area is revoked on the grounds that the disposition of approval is illegal, as long as the disposition of permission of factory construction based on the approval disposition is remaining, it cannot be readily concluded that the situation that the revocation of the disposition of approval of factory construction is in violation of environmental interests of neighboring residents or that the risk is terminated, or that the neighboring residents still have a legal interest in seeking revocation of the disposition of permission of factory construction (see, e.g.

C. In the same purport, the lower court determined that the legal interest was recognized to seek revocation of the instant factory building permit disposition against the Plaintiffs, as long as the instant factory building permit disposition based on the said factory construction permit disposition remains effective, even though the judgment of revoking the factory construction permit disposition against the Defendant auxiliary intervenors was finalized in the lawsuit seeking revocation of the factory construction permit issued by neighboring residents. In so determining, the lower court did not err by misapprehending the legal doctrine on legal interest in the revocation lawsuit

2. As to the illegality of the factory building permit disposition

A. The record reveals the following facts: (a) the Defendant issued a disposition to establish a new ready-mixed factory with the Defendant on July 13, 2009 to the Defendant joining the Defendant, but the judgment revoking the factory on the ground that it does not constitute “an act of changing the purpose of use to change a factory to an urban factory” exceptionally permitted within a development restriction zone or “construction of a building in force” (Supreme Court Decision 2012Du24474 Decided March 14, 2013).

B. According to the legal principles as seen earlier, since the judgment revoking the approval of factory construction against the Defendant’s Intervenor became final and conclusive, the instant disposition against the Defendant’s Intervenor on the permission of factory construction was unlawful as it lost the basis of the disposition.

In the same purport, the lower court determined that the instant disposition of factory construction should be revoked on the ground that it was unlawful. In so determining, the lower court did not err by misapprehending the legal doctrine regarding the restriction on acts in development restriction zones, requirements for factory construction permission, factory establishment area, succession to defects, restrictions on the cancellation of beneficial administrative acts, the binding force of the Board of Audit and Inspection’s examination and decision, and the exercise of right to explanation. The allegation in the grounds of appeal on this part is nothing more than

3. As to the violation of the duty to remand essentially by the court below

According to Article 8(2) of the Administrative Litigation Act and Article 418 of the Civil Procedure Act, in a case where a judgment of the first instance, which dismissed a lawsuit on account of its illegality, is revoked, if the first instance court has examined the case to the extent that it can render a judgment on the merits, the appellate court may render a judgment on

Examining the records in accordance with the above statutes and legal principles, the court below was just to revoke the judgment of the court of first instance which dismissed the lawsuit, but did not remand the case to the court of first instance, and there was no error by misapprehending the legal principles on the essential remand.

4. Conclusion

Therefore, all appeals are dismissed, and the costs of the appeal are assessed against the Defendant, who is the losing party, and the remainder is assessed against the Defendant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim So-young (Presiding Justice)