A. Whether a disposition to restore the effect of a license invalidated for reclamation of public waters is an act of free discretion (affirmative);

(b) Whether the licensing authority is obligated to recover the license where the reclamation work is completed after the public waters reclamation license becomes effective (negative)

A. Since public waters reclamation license is of the nature of a patent, which is an act of establishment right, in principle, belongs to the free discretion of the administrative agency, and the act of restoring the effect of invalidated reclamation license belongs to the free discretion of the licensing agency, such as granting a new license, unless there are special circumstances, barring special circumstances, it is reasonable to view that the disposition of restoring the effect of the reclamation license which has lost its effect under Article 25(1) of the Public Waters Reclamation Act prior to its enforcement pursuant to Article 25(4) of the Public Waters Reclamation Act (amended on December 31, 1986), is also an act belonging to the free discretion of the licensing agency,

B. If the reclamation license of public waters was completed after the lapse of the construction period, the construction after the effect of the license is merely an act of reclamation by the unlicensed person, and there is no obligation for the licensing authority to restore the license based on its delay.

Paragraph 1 of Article 25 of the Public Waters Reclamation Act, Paragraph 4 of the Addenda (amended on December 31, 1986)

B. Supreme Court Decision 68No1 Decided November 26, 1968

[Judgment of the court below]

Do Governor of Chungcheongnam-Nam

Seoul High Court Decision 88Gu1594 delivered on July 7, 1988

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

The grounds of appeal by the defendant litigant are examined.

1. According to the reasoning of the judgment below, on March 13, 1965, the court below acknowledged that the plaintiff's reclamation license was invalidated on the part of the defendant's 14th of October 14th of 1987 pursuant to Paragraph (4) of the Addenda of the Public Waters Reclamation Act (amended by December 31, 1986), since the plaintiff obtained a reclamation license from the defendant on the sea (the 97th anniversary of reclaimed area, 7th of the attached drawing of the judgment below), and the reclamation license was executed on December 31, 1969, but the reclamation license was not completed until December 31, 1969, and that the above license was invalidated on the part of the plaintiff's 19th of 4th of the 197th of the 197th of the 196th of the 196th of the 196th of the 196th of the 196th of the 196th of the 196th of the 19th of the 19th of the above construction.

2. However, since public waters reclamation license has the nature of a patent which is an act of right, in principle, it belongs to the free discretion of the administrative agency, and once an act of restoring the effect of an invalidated reclamation license belongs to the free discretion of the licensing agency, such as granting a new license, barring special circumstances. Thus, it is reasonable to regard the disposition of restoring the effect of the reclamation license which has lost its effect pursuant to Article 25(1) of the Public Waters Reclamation Act prior to its enforcement pursuant to Article 25(4) of the Public Waters Reclamation Act (amended by December 31, 1986) as an act belonging to the free discretion of the licensing agency, barring special circumstances.

The court below determined that the plaintiff's license's restoration of effect belongs to the speeding discretion considering the circumstances of the plaintiff's completion of reclamation works. However, even if it is based on the facts determined by the court below, the plaintiff's completion of the construction of the outer tide embankment at the time when the public water reclamation license was invalidated due to the completion period and completed the construction of the outer tide embankment only after the termination of the above reclamation license. Thus, the construction executed after the license was invalidated is merely an act of reclamation by the unlicensed without the license holder, and thus, it does not have a duty to restore the license with the speeding authority (see Supreme Court Decision 681 delivered on Nov. 26, 1986).

If the defendant's disposition rejecting the plaintiff's application for the recovery of reclamation license's effect belongs to the free discretion, it cannot be viewed as infringing the plaintiff's legal interest or right, apart from the fact that it actually infringed the plaintiff's interest, so the plaintiff does not have a legal interest in dispute over the illegality of

3. Ultimately, the judgment of the court below is erroneous in the misunderstanding of legal principles as to the disposition of restoring the validity of the reclamation license of public waters, which affected the conclusion of the judgment, and there is a ground to discuss this point. Therefore, the judgment below is reversed and remanded. It is so decided as per Disposition by the assent

Justices Kim Sang-won (Presiding Justice) Lee Jong-won (Presiding Justice)