[도시계획사업시행허가처분등취소][공1989.1.15.(840),119]
(a) The validity of the ruling revoking the rejection disposition and the existence of a lawsuit seeking the revocation of other disposition that is inconsistent with the purport of the ruling;
B. Defects subject to determination in a lawsuit seeking revocation of an administrative disposition
A. In a case where a ruling revoking a disposition rejecting a party's application is rendered, the administrative agency must make a disposition against the previous application in accordance with the purport of the ruling, so it is unlawful for the administrative agency to make another disposition that is incompatible with the disposition without making such disposition in accordance with the purport of the ruling. In this case, the applicant for the ruling has a benefit to seek the cancellation of the unlawful other disposition.
B. Since a lawsuit seeking the cancellation of an administrative disposition is a lawsuit seeking the cancellation or alteration of an illegal disposition of an administrative agency, the court should judge whether the disposition is unlawful, and it does not need to determine whether the disposition is unfair or not.
(a) Article 37 of the Administrative Appeals Act and Article 12 of the Administrative Litigation Act;
Danam Transportation Co., Ltd., Counsel for the plaintiff-appellant Kim Jin-jin
[Defendant-Appellee] Defendant 1 et al., Counsel for defendant-appellee
Appellant, Inc.
Seoul High Court Decision 87Gu1407 delivered on June 13, 1988
The appeal is dismissed.
The costs of appeal shall be assessed against each appellant.
We examine the grounds of appeal.
1. Where a ruling is rendered to revoke a disposition rejecting a party's application, the administrative agency must take another disposition against the previous application in accordance with the purport of the ruling (see Article 37 (1) and (2) of the Administrative Appeals Act). Thus, where an administrative agency does not take another disposition in accordance with the purport of the ruling and does not take another disposition that is incompatible with the said disposition, it shall be illegal, and in this case, the applicant for the ruling shall have the interest in demanding the revocation of the illegal other dispositions.
In the same purport, the court below's decision on Sep. 4, 1987 that the defendant must make a disposition against the plaintiff as to the application for permission of this case at the original time. However, it is illegal that the defendant's disposition to authorize execution of urban planning projects (automobile depots) against the defendant joining the defendant, who is an unconformity with the disposition, is illegal, and it is just that the plaintiff, who is the applicant for the ruling, has an interest in demanding revocation of the disposition to authorize execution of urban planning projects by the defendant against the defendant joining the defendant. There is no error of law in the misapprehension of legal principles as to the validity of the ruling
2. The judgment of the court below on December 30, 1983 recognized that the public notice of the Minister of Construction and Transportation made on December 30, 1983 shall be designated as a high speed and passenger vehicle stop district without any subdivision of the use for the original district. The court below is just in light of the records of the process of cooking the evidence which was conducted in recognizing the above facts, and there is no violation of the rules of evidence against the rules of evidence, such as the theory of lawsuit. The appeal that there was an error of law in the misapprehension of the legal principles as to the urban planning decision
3. According to the records, it is evident that the plaintiff filed an administrative appeal with the Do governor as of October 26, 1987 against the defendant's order to implement the urban planning project against the defendant's intervenor as of October 15, 1987 and the defendant's order to change the location and size of automobile depots against the plaintiff as of October 16, 1987. The Cheongnam-do governor filed an administrative appeal with the Do governor as of October 28, 1987. The decision to revoke the application for the change of the location and size of automobile depots against the plaintiff as of October 16, 1987. The decision of the court below which did not affect the plaintiff's order to implement the urban planning project against the defendant's intervenor as of October 15, 1987 was not made after 60 days from the date of the defendant's request for administrative appeal (see Article 18 (1) 1 of the Administrative Litigation Act). Thus, the court below's determination that the plaintiff's above decision was not legitimate in its reasoning.
4. Since a lawsuit seeking the cancellation of an administrative disposition is a lawsuit seeking the cancellation or alteration of an illegal disposition of an administrative agency, the court should judge whether the administrative disposition is illegal, and there is no need to determine whether the administrative disposition is illegal or not.
The defect that has become the cause for the revocation of administrative disposition is a premise of a misunderstanding of the legal principles as to the cause for the revocation of administrative disposition and an independent opinion that there was an omission of judgment, on the premise that it should be improper as well as the illegality of administrative disposition.
5. Therefore, all appeals are dismissed, and the costs of appeal are assessed against each appellant. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Song Man-Ba (Presiding Justice)