[1] The scope of ex officio investigation in administrative litigation

[2] Requirements for the application of the principle of the protection of trust to the acts of administrative agencies

[3] In case where a prior decision on a housing construction project plan under Article 32-4 (1) of the former Housing Construction Promotion Act is made, whether a disposition to approve a housing construction project plan under Article 33 (1) of the same Act is discretionary

[1] Even in an administrative litigation, the principle of no appeal is applied, and the court may not render a judgment beyond the scope requested by the parties. However, the court may ex officio investigate the evidence of the matters which were disclosed on the records within the scope of the parties' claims and determine the facts which the parties did not assert.

[2] In general in administrative legal relations, in order to apply the principle of the protection of trust to an act of an administrative agency, first, the administrative agency should name the public opinion that is the object of trust to an individual, second, the administrative agency should not be responsible to the individual for the trust that the statement of opinion is justifiable, third, the individual should have trusted and committed any act. Fourth, by the administrative agency's disposition contrary to the above statement of opinion, the administrative agency should have made a disposition contrary to the above statement of opinion, thereby infringing the individual's interest in the trust. Unless any administrative disposition is likely to seriously undermine the public interest or legitimate interests of a third party, it shall be deemed unlawful as an act contrary to the principle of the protection of trust.

[3] The approval of a housing construction project plan under Article 33 (1) of the former Housing Construction Promotion Act (amended by Act No. 5914 of Feb. 8, 1999) is a so-called beneficial administrative disposition that entails the effect of granting rights or interests to the other party, and unless the requirements for administrative disposition are stipulated in a daily manner, it shall belong to the discretionary act of the administrative agency, and it shall not be deemed that there is a prior decision of the housing construction project plan under Article 32-4 (1) of the

[1] Article 26 of the Administrative Litigation Act / [2] Article 4 (2) of the Administrative Procedures Act, Article 1 of the Administrative Litigation Act / [3] Article 32-4 (4) of the former Housing Construction Promotion Act, Article 33 (1) of the former Housing Construction Promotion Act, Article 31-4 (3) of the former Enforcement Decree of the Housing Construction Promotion Act (amended by Presidential Decree No. 15786 of Apr. 30, 1998)

[1] Supreme Court Decision 94Nu5069 delivered on February 14, 1995 (Gong1995, 130), Supreme Court Decision 96Nu1425 delivered on October 28, 1997 (Gong1997Ha, 3698), Supreme Court Decision 98Du6494 delivered on May 8, 1998 (Gong1998Ha, 2602), Supreme Court Decision 98Du7343 delivered on November 13, 1998 (Gong198Ha, 288), Supreme Court Decision 96Nu19639 delivered on September 16, 199 (Gong1969, 2602), Supreme Court Decision 98Du196399 delivered on September 39, 199 (Gong1998, 288)

Han-ro Co., Ltd. (Attorney Han-gil et al., Counsel for the defendant-appellant)

The head of Seodaemun-gu Seoul Metropolitan Government

Seoul High Court Decision 97Gu31054 delivered on December 15, 1998

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

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

Even in administrative litigation, the principle of indeterminate objection is applied, and the court cannot render a judgment beyond the scope requested by the parties. However, the court may ex officio investigate the facts on the one-time record within the scope of the parties' claims and determine the facts on which the parties did not assert (see, e.g., Supreme Court Decision 91Nu2854, Nov. 8, 191).

According to the reasoning of the judgment below, the court below found that the housing construction project plan of this case was not likely to cause serious harm to the public interest on the grounds that the environmental destruction of the Ansan Natural Park and that the plan might cause serious harm to the public interest on the site, and that the plan for the construction project of this case was not necessarily subject to temporary deliberation and prior decision due to the instruction of the Presidential Secretariat to reduce economic administrative regulation, and that the plan for the construction project of this case was likely to cause serious harm to the rights to the pleasant natural environment of all residents by destroying the natural ecosystem in Ansansan and substantially impairing the rights to the pleasant natural environment. According to the records, the court below's fact-finding and determination are based on the judgment of the Seoul High Court (Evidence No. 54) which made by the plaintiff with respect to the case for which the plaintiff filed an administrative lawsuit against the defendant seeking the cancellation of the approval refusal of the housing construction project of this case. Thus, even if the defendant did not make such a assertion, it is just and there is no error in the misapprehension of legal principles as above.

2. Regarding ground of appeal No. 2

In general, in administrative legal relations, in order to apply the principle of the protection of trust to an act of an administrative agency, the first administrative agency should name the public opinion that is the object of trust to an individual, second, that the public opinion statement of an administrative agency is justifiable and trusted, there is no cause attributable to the individual, third, that individual should have trusted that opinion statement of the administrative agency, and third, that administrative agency should have conducted any act against the above opinion statement, and fourth, that administrative agency should have made a disposition contrary to the above opinion statement, thereby infringing on the interest of an individual who trusted that opinion statement of the opinion statement of the administrative agency. Unless any administrative disposition is likely to seriously undermine the public interest or legitimate interest of a third party, an act contrary to the principle of the protection of trust is illegal (see, e.g., Supreme Court Decision 98Du19070, Mar. 9, 199).

According to the records, the plaintiff received a prior decision on the housing project plan of this case from the defendant, and accordingly, although the plaintiff was found to have prepared for the housing project of this case, the plaintiff's approval of the housing project plan of this case may seriously infringe the public interest. Thus, the principle of trust protection cannot be applied.

Therefore, the decision of the court below to the same purport is just, and there is no error of law such as the theory of lawsuit. The argument is without merit.

3. As to the third ground for appeal

The approval of a housing construction project plan under the provisions of Article 33 (1) of the Housing Construction Promotion Act is a so-called beneficial administrative disposition that entails the effect of giving rights and interests to the other party, and is not stipulated in a daily manner as to the requirements for administrative disposition (see, e.g., Supreme Court Decisions 96Nu1698, Mar. 14, 1997; 96Nu6295, Feb. 11, 197); and it is not different from the prior decision of a housing construction project plan under the provisions of Article 32-4 (1) of the same Act.

Therefore, even if the defendant made a prior decision on the housing construction project of this case, the decision of the court below that the decision can be made by comparing the private interest and the public interest without being bound by the prior decision at the project approval stage is just, and there is no error of law such as the theory of lawsuit. There is no reason to discuss.

4. Therefore, the appeal is dismissed and all 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 Lee Jae-soo (Presiding Justice)