[1] In a case where an administrative agency imposes a duty on a party or imposes a limitation on his rights and interests, if prior notice is given to the party or the opportunity to present opinions is not given to the party, whether such disposition is unlawful (affirmative with qualification)

[2] The case holding that if prior notice of an order to suspend construction works under the Building Act is given and opportunities to present opinions are given, it does not constitute a ground for exception to the procedure of giving prior notice and submission of opinions

[1] According to Articles 21(1) and (4) and 22(1) through (4) of the Administrative Procedures Act, in cases where an administrative agency imposes obligations on the parties or imposes restrictions on their rights and interests, the administrative agency shall notify the parties concerned of the facts causing the disposition and the contents of the disposition, legal grounds therefor, the submission of their opinions, and the processing methods when it does not present their opinions, etc., and, in cases where other Acts and subordinate statutes do not stipulate that a hearing shall be held or a public hearing shall be held, the parties concerned shall be given an opportunity to present their opinions. However, in cases where the administrative agency does not give prior notice or hear their opinions when it does not give prior notice or give them an opportunity to present their opinions, the administrative agency shall not be exempt from revocation of the disposition, unless there are exceptional cases where the administrative agency does not give prior notice or give them an opportunity to present their opinions if they did not give such prior notice or give them an opportunity to present their opinions.

[2] The case holding that if prior notice of an order to suspend construction under the Building Act is given and an opportunity to present opinions is given, it does not constitute an exception to the procedure of giving prior notice and submission of opinions.

[1] Articles 21 and 22 of the Administrative Procedures Act / [2] Articles 21 and 22 of the Administrative Procedures Act

[1] Supreme Court Decision 99Du5870 delivered on November 14, 2000 (Gong2001Sang, 56) Supreme Court Decision 2000Du337 delivered on April 13, 2001 (Gong2001Sang, 1143)

Plaintiff (Attorney Han Jin-hee et al., Counsel for the plaintiff-appellant)

The head of Sung-nam City/Gu

Seoul High Court Decision 2003Nu1761 delivered on December 16, 2003

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

We examine the grounds of appeal.

According to Articles 21(1) and (4) and 22(1) through (4) of the Administrative Procedures Act, where an administrative agency imposes obligations on the parties or imposes restrictions on their rights and interests, the administrative agency shall notify the parties concerned of the fact that the grounds for such dispositions and the details of such dispositions and the legal grounds therefor, the submission of their opinions, and the processing methods when it fails to present their opinions, etc.; provided that the parties concerned shall be given an opportunity to present their opinions when necessary in other Acts and subordinate statutes or public hearings are not provided; provided that “where it is deemed that the hearing of opinions is difficult or clearly unnecessary due to the nature of the dispositions in question,” the administrative agency shall not give prior notice or hear their opinions. In rendering infringing administrative dispositions, unless the administrative agency gives prior notice or gives the parties an opportunity to present their opinions, such dispositions cannot be exempt from revocation due to their illegality (see Supreme Court Decision 9Du570, Nov. 14, 200).

According to the reasoning of the judgment below, the court below determined that the order to suspend the construction of this case (hereinafter referred to as the "disposition of this case") is an infringing administrative disposition under Article 69 (1) of the Building Act on the ground that the plaintiff already obtained permission for construction of a building under the Building Act at the time of designation and public announcement of planned area under Article 3 of the Housing Site Development Promotion Act (amended by Act No. 6655 of Feb. 4, 2002, hereinafter referred to as the "Act"), but the construction permission became null and void due to the failure to commence construction before the designation and public announcement, and thus, the plaintiff cannot be deemed to have suffered damages equivalent to the expenses incurred in preparation of the construction due to the loss of the construction permission's effect even before the designation and public announcement date, and thus, it is difficult to obtain prior notification of the disposition of this case to prepare for such situation, and it is not necessary to have an opportunity to present opinions, and thus, the defendant, other than the disposition of this case, can not be deemed to have any urgent measure to reinstate the plaintiff without any prior notification of this case.

In light of the above legal principles, the provisions of relevant laws and regulations, and the records, the above recognition and judgment of the court below are acceptable, and there are no errors in the misapprehension of legal principles as to prior notice and the exception to the submission of opinions, as otherwise alleged in the ground of appeal.

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 Shin-chul (Presiding Justice)