Whether an application for extension shall be filed in order to extend the period of permission prior to the arrival of the period of permission in cases where the period of permission can be seen as the period of permission because the period of permission is unreasonably short due to the nature of the permitted business (affirmative)

In general, where the effective period of an administrative disposition is determined, the effect of the administrative disposition shall be invalidated upon the lapse of such period: Provided, That if the permitted period is unreasonably short due to the nature of the permitted business, such period may be interpreted as being the duration of the permitted business, not the duration of the permission itself, but as taking into account the revision of the condition upon arrival of such period. However, even in such cases, an application for the extension of the permitted period shall be filed before the expiration of the period of permission in order to extend the permitted period, and if the permitted period expires without such application, such permission shall lose its effect.

Article 1 of the Administrative Litigation Act / [General]

Supreme Court Decision 94Nu11866 delivered on November 10, 1995 (Gong1995Ha, 3930) Supreme Court Decision 2003Du12837 Delivered on March 25, 2004 (Gong2004Sang, 726) Supreme Court Decision 2004Du7023 Delivered on November 25, 2004 (Gong2005Sang, 44)

Mayoung Development Co., Ltd. (Attorney Yoon-sik et al., Counsel for the defendant-appellant)

Sin Construction Co., Ltd. (Attorney Ma-tae et al., Counsel for the defendant-appellant)

Mo City Mayor (Attorney Lee Byung-il, Counsel for defendant-appellee)

Seoul High Court Decision 2004Nu16135 delivered on September 8, 2005

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

In general, where the effective period of an administrative disposition is determined, the effect of the administrative disposition shall be invalidated upon the lapse of such period: Provided, That where the period attached to the permission is unreasonably short due to the nature of the permitted business, such period may be interpreted as taking into account the revision of the conditions upon the arrival of such period, considering the term of the permission, rather than the period of the permission itself, (see Supreme Court Decisions 94Nu11866, Nov. 10, 1995; 2004Du7023, Nov. 25, 2004; 2004Du7023, Nov. 25, 2004, etc.).

However, according to the reasoning of the judgment below and the records, the plaintiff obtained the permission from the defendant on November 23, 1995 for the diversion of the reserved forest of this case by setting the project period from November 23, 1995 to November 22, 1996. After that, the permission for the diversion of the reserved forest of this case did not apply for extension of the period of the said permission after the lapse of the said project period. Accordingly, the permission for the diversion of the reserved forest of this case is deemed to have expired upon the expiration of the said project period. Such decision does not affect the conclusion that the project period for the diversion of the reserved forest of this case is unfairly short in light of the project period of the housing construction project, which is its purpose, or that the said permission for the diversion of the reserved forest of this case is valid at present, or that the defendant notified the plaintiff that the permission for the diversion of the reserved forest of this case was revoked

Nevertheless, the court below determined that the permission to divert the reserved forest of this case is valid until now on the grounds stated in its reasoning. In so doing, the court below did not err by misapprehending the legal principles on the nature of the deadline attached to the permission, thereby affecting the conclusion of the judgment. The ground of appeal pointing this out is with merit.

Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Hwang-sik (Presiding Justice)