[1] In a case where a subsequent disposition is made to revise the contents of the prior disposition, whether the validity of the prior disposition exists

[2] Where a prior disposition continues to exist within the extent that the prior disposition is not modified by the subsequent disposition, and the subsequent disposition takes effect within the scope of partial modification of the contents of the prior disposition, and where a claim for revocation of the subsequent disposition is modified by adding a claim seeking revocation of the subsequent disposition, the standard time to determine whether the period for filing a lawsuit is complied with

[1] Where a subsequent disposition is made with a substantial change in the main part of the prior disposition, the prior disposition shall lose its effect, except in extenuating circumstances. However, the prior disposition shall not be deemed to have existed uniformly on the ground that there was a subsequent disposition, and where it is merely a minor change in only part of the content of the prior disposition, it shall not be deemed to have

[2] Where a prior disposition continues to exist within the extent that the contents of the prior disposition are not modified by the subsequent disposition, and where a subsequent disposition takes effect within the extent that the contents of the prior disposition are partially modified, if a lawsuit seeking revocation of the subsequent disposition was filed and a claim seeking revocation of the subsequent disposition was modified, whether the period for filing a lawsuit regarding the subsequent disposition complies with the period for filing a lawsuit concerning the subsequent disposition should be determined at the time of modification of the claim

[1] Article 2 of the Administrative Litigation Act / [2] Article 20 of the Administrative Litigation Act

[1] Supreme Court Decision 2010Du1224 Decided October 11, 2012

Plaintiff (Law Firm LLC, Attorneys Kim Yong-ki et al., Counsel for the plaintiff-appellant)

The Minister of Knowledge Economy (Attorney Kim Jong-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2008Nu32609, 32616 decided August 19, 201

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1 through 5

In order for an administrative disposition to be deemed null and void as a matter of course, it is insufficient to say that there is an illegal ground, and its defect is a serious violation of a statute and objectively obvious (see Supreme Court Decision 95Nu4414, Feb. 9, 1996, etc.). The plaintiff who claims the invalidity of the administrative disposition as a matter of course and seeks the invalidity of the administrative disposition is liable to prove the reason why the administrative disposition is null and void (see Supreme Court Decision 91Nu6030, Mar. 10, 1992, etc.).

The court below, based on the evidence in its holding, found that the defendant granted the Korea District Heating Corporation a permit for an integrated energy project on December 12, 2003 for the installation of the main heat co-electric power plant as stated in its holding on January 11, 2006, with a permit for change of the business (hereinafter “the first permit for change”) on August 19, 2008, to change the maximum load load size, the number of heat supply facilities installed and the location of the main heat supply facilities, etc. on August 19, 2008. The court below rejected the second permit for change of the main defect or the second permit for change on the ground that the defendant did not conduct the first and second permit for change of the main heat co-electric power plant without undergoing an administrative pre-announcement and residents opinion gathering without undergoing an environmental impact assessment at the time of the first and second permit for change, and it is evident that the second permit for change of the main defect is invalid or that there is no significant defect in light of the plaintiff’s assertion that the second permit for change is invalid.

Examining the reasoning of the lower judgment in light of the relevant statutes and the legal principles as seen earlier, the lower court did not err in its judgment by misapprehending the legal principles on objects of environmental impact assessment, effects of administrative dispositions which did not undergo environmental impact assessment, substantive and procedural requirements of collective energy projects, etc., as alleged in the grounds of appeal.

2. As to the grounds of appeal Nos. 6 and 7

A. Where a subsequent disposition is rendered with a substantial change in the main part of the prior disposition, the prior disposition becomes void, except in extenuating circumstances. However, the existence of the subsequent disposition does not uniformly lead to the absence of the prior disposition, and where it is merely a minor change in only a part of the content of the prior disposition, the prior disposition cannot be deemed extinguished (see Supreme Court Decision 2010Du1224, Oct. 11, 2012, etc.).

Thus, in a case where the preceding disposition continues to exist within the extent that the contents of the preceding disposition are not modified by the subsequent disposition, and the subsequent disposition takes effect within the extent that the contents of the preceding disposition are partially modified, if the subsequent disposition filed a lawsuit seeking the revocation of the preceding disposition, and subsequently filed a claim seeking the revocation of the subsequent disposition, if the claim was modified, whether the period for filing a lawsuit regarding the subsequent disposition complies with the period for filing a lawsuit concerning the subsequent disposition

The court below held that the part of the claim seeking revocation of the second modification permission of this case should be determined based on whether the claim period for revocation of the second modification permission of this case complies with the filing period, since the claim seeking revocation of the second modification permission of this case was added and modified in accordance with the Civil Procedure Act during the lawsuit seeking revocation of the second modification permission of this case while the lawsuit seeking revocation of the second modification permission of this case was filed on April 11, 2006, which was the date of the first modification of the permission of this case, and that the lawsuit seeking revocation of the first modification permission of this case was filed on April 14, 2008, which was the date of the first modification of the permission of this case, and it cannot be deemed that there was a justifiable reason for the cancellation of the second modification permission of this case. The court below determined that the part of the claim seeking revocation of the second modification permission of this case is unlawful, because it was also against the part of the claim seeking revocation of the second modification permission of this case.

According to the reasoning of the judgment below and the records, the defendant, on January 11, 2006, issued the first permission to change the establishment of the "stowing Power Plant". After considering the change in the demand of neighboring areas, the defendant moved one of the three heat-only boiler facilities, which were to be installed by the first permission to another heat-driven power plant, into another heat-driven power plant, and the maximum heating load size is also reduced from 693GGal/h to 590Gal/h, and the second permission to change the second permission was reflected in such change. The second permission to change the first permission to change was excluded from the above changes. In light of the legal principles as seen above, the first permission to change and the second permission to change are related to the establishment of the "stowing Power Complex", and the second permission to change the second permission to change the second permission to the second of this case cannot be deemed to continue to exist within the scope of the second of the new permission to the extent that the first permission to change the second of this case only within the scope of the previous facilities and the second permission to change.

However, according to the reasoning of the judgment below and the record, after the second change of the title of this case was made on August 19, 2008, the plaintiff filed an application for amendment of the purport of this case to add the claim seeking revocation of the second change of the title of this case on June 9, 2010. Thus, even when the time of filing an application for amendment of the purport of this case was based on the time of filing an application for amendment of the purport of this case, it is obvious that one year has passed from the date of disposition, which is the period of filing a revocation lawsuit, as provided in the main sentence of Article 20(2) of the Administrative Litigation Act, and it is insufficient to prove that the period of filing the application for amendment of the purport of this case has a justifiable ground (as seen below, the second change of title of this case was known to the plaintiff as of September 30, 2009, the second change of title of this case and the second part of this case seeking revocation is unlawful).

Therefore, we affirm the conclusion that the court below's preliminary claim seeking revocation of the second modification permission of this case is unlawful, even if the period for filing a lawsuit is imposed. It did not err by misapprehending the legal principles as to the period for filing a lawsuit under administrative litigation, thereby affecting the conclusion of the judgment.

B. Furthermore, the lower court, based on its stated reasoning, found that the Plaintiff was aware of the change in the disposition based on the second modification permission of this case around September 30, 2009, and determined additionally that the application for modification of the claim seeking revocation of the second modification permission of this case failed to meet the requirements of Article 22(2) of the Administrative Litigation Act.

Examining the reasoning of the judgment below in light of the records, there is no error of law that affected the conclusion of the judgment by violating logical and empirical rules and exceeding the bounds of the principle of free evaluation of evidence in the fact-finding which is the basis of the above additional judgment of the court below

3. Conclusion

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 on the bench.

Justices Shin Young-chul (Presiding Justice)