[건축허가취소][공1992.6.15.(922),1738]
A. Whether there is a benefit in a lawsuit seeking the revocation of an illegal administrative disposition, even if such disposition is revoked, if such reinstatement is impossible (negative)
(b) The case holding that the owner of an adjacent site has no benefit in filing a claim for the revocation of the disposition of the building permit, if the building permit had already been completed, even if it was unlawful since the building permit had been constructed without a separation distance set forth in the Building Act.
A. Since a lawsuit seeking the cancellation of an illegal administrative disposition is a lawsuit seeking the restoration to its original state by removing an illegal state caused by the illegal disposition and protecting or remedying the rights and interests infringed or interfered with such disposition, there is no benefit to seek the cancellation, even if such cancellation is impossible to restore the original state.
B. The case holding that even if the building permit does not keep a separation distance under the Building Act and is illegal since it was constructed, if the construction work was completed on the basis of the building permit, the Plaintiff, the owner of the site adjacent to the site for which the building permit was granted, has obtained the revocation of the above building permit disposition, and it is not necessary to revoke the above disposition even in order to seek the removal of the building in civil procedure, and therefore there is no legal interest to seek the revocation of the above disposition.
(a)Article 12 of the Administrative Litigation Act; Article 41 of the Building Act; Article 90 subparagraph 1 of the Enforcement Decree of the Building Act;
[Plaintiff-Appellant-Appellee] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo and 1 other, Counsel for plaintiff-appellant-appellee-appellant-appellee-appellant-Appellee-Appellant-Appellee-Appellee-Appellant-Appellee-Appellee-Appellant-Appellee-Appellee-Appellant-Appellee-Appellee-Appellant-Appellee-Appellee-Appellant-Appellee-Appellant-Appellee-Appellee-
Plaintiff-Appellee et al., Counsel for the plaintiff-appellant
Head of Busan Metropolitan City Do;
Busan High Court Decision 90Gu3287 delivered on September 25, 1991
The appeal is dismissed.
The costs of appeal are assessed against 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 excluding the state of illegality caused by the illegal disposition and protecting or remedying the rights and interests infringed or interfered with the disposition. Thus, even if the disposition is revoked, if it is impossible to restore it to the original state (see Supreme Court Decisions 86Nu676, Feb. 24, 1987; 87Nu98, May 12, 1987; 86Nu375, Sept. 8, 1987).
In the same purport, the court below determined that the non-party's construction completion around November 25, 190 of the same year prior to the filing of the lawsuit of this case after the construction permission was commenced on or around June 8, 199, and that even if the construction permission was illegal because it did not keep a separation distance under Article 41 of the Building Act and Article 90 subparagraph 1 of the Enforcement Decree of the same Act, if the construction construction is completed based on the construction permission, the plaintiff, the owner of the site adjacent to the site for which the construction permission was granted, is at the stage of securing a separation distance upon the cancellation of the construction permission. In order to seek the removal of the above building against the above non-party by civil action, the court below did not have any legal interest in seeking the cancellation of the above disposition. The judgment of the court below is just and it cannot be deemed that the building was completed without undergoing the completion inspection as long as it was completed based on the construction permission, and there is no error in the misapprehension of legal principles like theory.
Therefore, the appeal is dismissed and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Park Jong-dong (Presiding Justice) Kim Sang-ho (Presiding Justice)