[1] The meaning of “construction of the site”, which is the requirement to allow the construction of a building, / In a case where a parcel of land is to be used differently from the use (land category) of the relevant land, whether development activities (such as changing land form and quality) under Article 56(1) of the National Land Planning and Utilization Act should be permitted to lawfully change the use of the relevant land (affirmative); and whether the same applies to a case where the actual status of the relevant land is changed from the land category in the public record at any time or construction for changing the physical form of the land is not necessary

[2] In a case where there is a basis provision that can treat the relevant authorization and permission for the purpose of inter-corporate fire extinguishing in connection with the implementation of a development project, whether a project implementer is obligated to apply for legal fiction of authorization and permission when applying for authorization and permission (negative)

[3] In order to construct a building, whether the issuance of a building permit under the Building Act and a construction permit under the National Land Planning and Utilization Act (construction of a building) should be reviewed and determined at the same time through the legal fiction of the relevant authorization and permission procedure under the Building Act (affirmative)

[4] The meaning of "project area" as stipulated in Article 59 [Attachment 4] subparagraph 1 (c) of the Enforcement Decree of the Environmental Impact Assessment Act, in the case of an agricultural and forest area under Article 6 subparagraph 3 of the National Land Planning and Utilization Act, the project area is at least 7,500 square meters in size

[5] Where the beneficial administrative disposition can be revoked ex officio, and where the defect of the beneficial administrative disposition is attributable to the other party's act of filing an application by concealment or other wrongful means, whether the trust interest of the other party to the disposition should be considered (negative)

[6] Whether the application of the amended Act constitutes an infringement of property rights by retroactive legislation in cases where the amended Act, which forms the basis for administrative disposition, provides for the legal effect more unfavorable than the previous one in relation to the property rights of the people while applying the existing facts or legal relations that have not been completed or terminated before its enforcement (negative in principle)

[7] Whether the criteria and prohibition requirements for permission for development activities under the National Land Planning and Utilization Act belong to the area of the administrative agency’s discretionary judgment (affirmative), and the subject matter of judicial review and criteria for determination thereof / The method of examining whether the administrative agency’s permission for development activities that are likely to cause environmental damage or pollution is deviating from or abusing its discretionary power in relation to the permission of the administrative agency

[8] The case holding that in a case where Gap applied for a building permit to build ten cattle penss in 7,457 square meters of land, the land category of which was designated as an agricultural and forest area and agricultural promotion area pursuant to the National Land Planning and Utilization Act, and where Gap applied for a building permit to build 7,457 square meters of a swine shed, and the competent construction administrative agency believed and issued a building permit to the effect that "building permit investigation and inspection report," which was submitted by a certified architect Eul who designed a stable upon Gap's request, and then filed a civil petition for a building permit ex officio, the building permit was revoked, in light of all the circumstances, the construction administrative agency's ex officio revocation of the building permit is recognized as a ground for

[1] Construction of a building may be permitted only where the owner has lawfully secured the relevant site. Here, “security of the site” includes the fact that the owner has to secure the ownership of and the right to use the land to construct the building, as well as the fact that the relevant land has the legal nature of allowing construction of the building under the relevant laws and regulations.

Any land shall be used in conformity with the land use (land category) of the land. In order to use a certain land differently from its land category, permission for development activities (land form and quality alteration) under Article 56(1) of the National Land Planning and Utilization Act shall be obtained in order to lawfully change the use of the land concerned. This same applies even in cases where the actual status of the land changes from the land category of the public record at any time or construction works for changing the physical form of the land are not required. The purpose of the land in question (the possibility of using the land legally permitted) should first be changed lawfully through permission for development activities (the change of land form and quality), and then the application for land category change shall be filed with the competent cadastral authority in accordance with

[2] If various individual laws stipulate the authorization system that differs from the requirements and effects with their own purpose and intent respectively in relation to the implementation of a certain development project, it is a principle that the implementation of the development project requires various authorization procedures under individual Acts and subordinate statutes. However, in cases where the relevant authorization system has a provision on the legal fiction of authorization for inter-corporate fire extinguishing, the project implementer may apply for the legal fiction of the relevant authorization within one procedure when applying for authorization. Since the relevant authorization system was made for the benefit of the project implementer, the project implementer is not obligated to apply for the legal fiction of the relevant authorization.

If a building owner’s failure to fulfill the “site security” requirement is likely to meet the “site security” requirement in the near future, it cannot be deemed unlawful to issue a building permit to the building owner under the Building Act on an implied premise, inasmuch as the construction administrative agency subsequently grants permission for development activities under the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”) on a separate basis or is naturally required.

However, if a building owner refuses to implement development activities (land form and quality change) under the National Land Planning Act or is likely to issue permission for development activities (land form and quality change) under the National Land Planning Act with respect to the relevant building site due to other changes in circumstances after the building owner was issued with a building permit under the Building Act, it is necessary to collect the building permit already issued by the building administrative agency by ex officio cancellation and withdrawal on the ground that the building permit did not meet the requirements of "land

[3] In full view of the contents, structure, and legislative purport of Article 11(1) and (5)3 of the Building Act, Article 56(1)1 of the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”), and Article 57(1)1 of the National Land Planning and Utilization Act, in order for a building owner to construct a building, the building permit and development activities (construction of a building) under the National Land Planning and Utilization Act should not be separately applied for, but the issuance of two permits through the legal fiction of permission under the Building Act should be examined and determined at the same time. In other words, the building owner shall submit to the building administrative agency an application for a building permit under the Building Act, along with necessary materials for the examination of the permission under the National Land Planning and Utilization Act (construction of a building). When issuing a building permit under the Building Act by undergoing prior consultation with the person entitled to permission for development activities, the building administrative agency should be deemed as the permission for development activities (construction of a building) under the National Land Planning Act.

Through this, it is also necessary to examine whether a building plan of a building owner satisfies the criteria for permission for development activities under the National Land Planning Act in the building permission procedure under the Building Act. Even if a building plan of a building owner satisfies the criteria for permission for development activities under the National Land Planning Act, the construction of the building in question is not permitted under the legal order. As such, when a building plan of a building owner fails to meet the criteria for permission for development activities under the National Land Planning and Utilization Act, the building administrative agency should not issue a building permit under the Building Act and shall not be treated as not deemed the permission for development activities (construction of a building) under the National Land Planning and Utilization Act, and shall refuse to issue a building permit under the Building Act. If a building permit is issued in the building permission procedure under the Building Act without examining whether the criteria for permission for development activities under the National Land Planning and Utilization Act are met, the building permit under the Building Act may be revoked.

[4] According to Articles 2 subparag. 3, 43(1), and 44(1) of the Environmental Impact Assessment Act, and Article 59 [Attachment Table 4] subparag. 1(c) of the Enforcement Decree of the same Act, the term “small environmental impact assessment” means conducting a development project in an area requiring environmental conservation or in an area requiring planned development because it is likely that such development is likely to occur, and thus, conducting a development project in an area requiring planned development, the feasibility of the location and the impact on the environment are examined, predicted, and assessed in advance, and formulating an environmental conservation plan. In the case of “agricultural and fishing area” under Article 6 subparag. 3 of the National Land Planning and Utilization Act, a development project, the area of which exceeds 7,500 square meters is subject to small environmental impact assessment, and a project operator who intends to implement the relevant development project,

Here, “project area” is the standard for determining the subject matter of the small environmental impact assessment. Considering the feasibility of the site of a development project and the purpose of the small environmental impact assessment system that intends to prepare a plan for environmental conservation by investigating, forecasting, and assessing the environmental impact of the development project on the environment, it is reasonable to deem that the “project area” is the total area where the development project is conducted, and that the project operator is required to obtain authorization from the relevant administrative agency in order to formulate and implement the project plan.

[5] Where there is a defect in an administrative disposition, the disposition agency may revoke it by itself even without any separate legal basis. However, when the disposition agency revokes a beneficial administrative disposition, it may revoke it only when it is highly possible to justify the disadvantage suffered by the other party to the disposition as necessary for public interest after comparing and comparing the significant public interest needs to revoke the disposition and the degree of infringement on the right to obtain benefits and legal stability to be suffered by the other party to the disposition due to the cancellation, etc. In the event that the defect in a beneficial administrative disposition is attributable to the other party’s act of application by concealment or other unlawful means, it shall be deemed that the other party to the disposition has anticipated the possibility of revocation by itself that he/she illegally acquired the benefits from the administrative disposition. Thus, it shall not be allowed to invoke the trust benefits from the administrative disposition, and even if the administrative agency did not consider

[6] Even in cases where the relevant statute is amended, unless otherwise specified in the transitional provision, administrative disposition shall be based on the amended law that takes effect at the time of the disposition and the standards set thereon. Even in cases where the amended law provides a legal effect more unfavorable than the previous one with respect to the property rights of the people while the existing facts or legal relations are subject to the application of the amended law, if such facts or legal relations are not already completed or terminated before the enforcement of the amended law, they shall not be deemed as a violation of property rights by retroactive legislation prohibited under the Constitution. In relation to the application of such amended law, if the people’s trust in the existence of the existing law prior to the amendment is recognized as more protected than the public interest demand for the application of the amended law, the application may be restricted to protect such trust

[7] Permission for development activities under the National Land Planning and Utilization Act refers to the area of discretion of an administrative agency to determine whether the criteria for permission and prohibition requirements are often prescribed as indefinite concepts. Therefore, in principle, the judicial review of such permission is subject to whether there is deviation or abuse of discretion by an administrative agency, taking into account the room for discretion as to public interest judgment of the administrative agency, and whether there is a violation of the principle of proportionality and equality. In particular, when examining whether there is deviation or abuse of discretion in relation to permission of an administrative agency for development activities that are likely to cause environmental damage or pollution, it shall be determined carefully by taking into account the legislative purport of various regulations on the balance of rights and interests among interested parties and the protection of environmental rights, such as the actual use of land and living environment of residents in the relevant area, and the legislative purport of various regulations on the protection of environmental rights. Determination of discretion by an administrative agency on the requirements for prediction of any uncertain situation and ripple effect, such as “confluence of environmental pollution” should be widely respected unless there are any circumstances such as where the content is considerably lack of rationality or when compared with the benefit or value.

[8] In a case where Party A applied for a building permit to construct ten livestock penss with the land category designated as an agricultural and forest area and agricultural area and agricultural promotion area under the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”), and issued a building permit with the belief of the entry of “building permit investigation and inspection report,” which was submitted by the competent administrative agency upon Party A’s request, and the construction permit was revoked ex officio upon the occurrence of a civil petition against the building permit, the case holding that the construction permit was revoked in addition to the building permit under the National Land Planning and Utilization Act, in order to construct livestock pens in the land which is the “land category” and the above construction permit was not satisfied with the requirements of Party A’s “construction site” or at least 1’s “construction permit (construction of a building)” under the National Land Planning and Utilization Act, and thus, the construction permit constitutes an ex officio revocation of the construction permit ex officio and at least 7’s “construction permit for a small scale area of not less than 5’s area of land subject to the construction permit” under the National Land Planning and Utilization Act (excluding the above construction permit).

[1] Article 56 (1) of the National Land Planning and Utilization Act, Article 81 of the Act on the Establishment, Management, etc. of Spatial Data / [2] Article 11 (1) and (5) 3 of the Building Act, Article 56 (1) 1 and Article 57 (1) of the National Land Planning and Utilization Act / [3] Article 11 (1) and (5) 3 of the Building Act, Article 56 (1) 1 and Article 57 (1) of the National Land Planning and Utilization Act, Article 19 of the Administrative Litigation Act / [4] Article 2 subparagraph 3, Article 43 (1) and Article 44 (1) of the Environmental Impact Assessment Act, Article 59 [Attachment Table 4] Article 11 (1) and (5) of the Enforcement Decree of the Environmental Impact Assessment Act, Article 57 (1) of the National Land Planning and Utilization Act / [5] Article 16 (2) of the Administrative Litigation Act, Article 7 (1) of the National Land Planning and Utilization Act

[1] Supreme Court Decision 2008Du10232 Decided December 10, 2009 (Gong2010Sang, 131) / [3] Supreme Court en banc Decision 2010Du14954 Decided January 20, 201 (Gong201Sang, 427) / [5] Supreme Court Decision 2003Du4669 Decided May 25, 2006 (Gong2006Ha, 1162), Supreme Court Decision 2019Du39611 Decided February 27, 2020 / [6] Supreme Court Decision 97Nu13818 (Gong200Sang, 973) Decided March 10, 200, Supreme Court Decision 201Du201475 Decided April 25, 2014 (Gong2014Du715475 decided April 27, 2014)

Plaintiff (Attorney Kim Tae-sik et al., Counsel for plaintiff-appellant)

Head of branch office from among Pyeongtaek-si (Law Firm Dog and one other, Counsel for the defendant-appellant)

Seoul High Court Decision 2018Nu52480 decided December 20, 2018

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Case summary and key issue

A. Review of the reasoning of the lower judgment and the record reveals the following circumstances.

(1) Pursuant to the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”), the Plaintiff filed an application for a construction permit with the Defendant under the Building Act, around December 14, 2016, in order to construct ten Dongs with a total of 11,284 square meters of total floor area of 7,457 square meters among the 7,457 square meters of land among ( Address 1 omitted), 3,455 square meters, ( Address 2 omitted), 1,402 square meters, ( Address 3 omitted), 3,977 square meters, 2,450 square meters, and 11,284 square meters of land (hereinafter “instant land”). At the same time, the Plaintiff filed an application with the Defendant for a construction permit under the Building Act, stating the Non-party (the Nonparty’s person who designed the instant housing building permit and the inspection report in accordance with the Plaintiff’s request, stating “the instant land form and quality change” as “the instant building permit and inspection report.”

(2) On January 12, 2017, the Defendant accepted the Plaintiff’s application and issued a building permit under the Building Act (hereinafter “instant building permit”) without examining whether the instant permit for development activities under Article 56(1) of the National Land Planning and Utilization Act is necessary for the construction of the stable in this case.

(3) Since then, ○○ New Urban Residents filed a civil petition against the instant building permit, the Defendant issued a disposition ex officio revocation of the instant building permit on September 28, 2017 with respect to the Plaintiff on the following three grounds after undergoing deliberation and hearing procedures by the Civil Petition Coordination Committee (hereinafter “instant disposition ex officio revocation”).

① The Plaintiff did not obtain permission for development activities under Article 56(1) of the National Land Planning and Utilization Act for the construction of the instant livestock shed (hereinafter “instant ground for disposition 1”).

② Construction of livestock pens in this case did not conduct small-scale environmental impact assessment under Article 59 [Attachment Table 4] of the Enforcement Decree of the Environmental Impact Assessment Act (hereinafter “reasons for Disposition 2”).

③ Of the instant land’s total size of 11,284 square meters, 345 square meters is irrelevant to the instant stable construction, and thus excluded from the building site area, and submitted “site temporary partition” to the effect that the instant land would be divided into the instant land in the future. However, such farmland division is in violation of Article 22 of the Farmland Act that prohibits the subdivision of farmland.

B. The key issue of the instant case is (1) whether the Defendant’s ex officio revocation disposition of the instant case is recognized as grounds for the first and second dispositions, and (2) whether the instant ex officio revocation disposition violates the legal principles on restrictions on ex officio revocation, even if the grounds for disposition are recognized as grounds for revocation.

2. Whether grounds for appeal No. 1 are acknowledged (Ground of appeal No. 1)

(a) Relationship between building permits under the Building Act and permission for development activities under the National Land Planning Act;

(1) Construction of a building may be permitted only where the owner has lawfully secured the relevant site. Here, “security of the site” includes the fact that the owner has to secure the ownership of and the right to use the land to construct the building, as well as the fact that the relevant land has the legal nature of allowing construction of the building under the relevant laws and regulations.

Any land shall be used in conformity with its land category. In order to use a certain land differently from its land category, permission for development activities (such as changing land form and quality) under Article 56(1) of the National Land Planning Act shall be obtained to lawfully change the use of the relevant land. This same applies even in cases where the actual status of the relevant land is different from its land category in the public record at any time, or construction works are not required to change the physical form and form of the relevant land. The first of all, through permission for development activities (such as changing land form and quality), the use of the relevant land should be lawfully changed through permission, and then the application for land category change shall be filed with the competent cadastral authority (see Supreme Court Decision 2008Du10232, Dec. 10, 2009).

For instance, in order to construct livestock pens in land the category of which is “finite”, development activities under the National Land Planning and Utilization Act (land form and quality alteration) should be permitted, as well as building permission under the Building Act to legally change the use of the relevant land. In particular, in order to safely construct large-scale livestock pens, livestock excreta under the Act on the Management and Use of Livestock Excreta in order to prevent environmental pollution from occurring in the soil of a stable site and to properly dispose of livestock excreta (specific packaging does not fall under “minor activities” subject to exemption from development activities under Article 53 subparag. 3 of the Enforcement Decree of the National Land Planning and Utilization Act), and further development activities (land form and quality alteration) are necessary. Although permission for farmland conversion under the Farmland Act is not necessary to use farmland as a stable site, permission for farmland conversion and permission for farmland conversion under the Farmland Act are not subject to permission under the National Land Planning and Utilization Act (see the proviso of Article 2 subparag. 7 of the Farmland Act). Therefore, permission for land form and quality alteration is not subject to permission under the National Land Planning Act.

(2) On the other hand, if various Acts and subordinate statutes provide for the authorization system that differs from the requirements and effects for the implementation of a certain development project, it is in principle that the implementation of the development project requires various authorization procedures under the individual Acts and subordinate statutes. However, if the relevant authorization system provides for the legal fiction of authorization for the implementation of a development project, the project implementer may apply for the legal fiction of the relevant authorization within one procedure upon filing an application for authorization. Since the relevant authorization system was made for the benefit of the project implementer, the project implementer is not obliged to file an application for legal fiction of the relevant authorization.

If a building owner’s failure to fulfill the “site security” requirement is highly likely to meet the “site security” requirement in the near future, it cannot be deemed unlawful to issue a building permit under the Building Act on an implied premise, inasmuch as the construction administrative agency is subject to the express condition that permission for development activities (land form and quality change) under the National Land Planning Act should be obtained subsequently, or is naturally requested.

However, if a building owner refuses to implement development activities (land form and quality change) under the National Land Planning Act after obtaining a building permit under the Building Act, or there has been a possibility to issue a permit for development activities (land form and quality change) under the National Land Planning Act with respect to the relevant building site due to other changes in circumstances, it is necessary to collect the building permit already issued by the building administrative agency by ex officio cancellation and withdrawal on the ground that the building permit did not meet the requirements for securing the site that

(b) Relationship between a building permit under the Building Act and a development permit under the National Land Planning Act;

(1) Although the construction of a building is subject to a building permit under the Building Act (Article 11(1) of the Building Act), at the same time, it is subject to permission for development activities under the National Land Planning and Utilization Act (Article 56(1)1 of the National Land Planning and Utilization Act). Since a building permit under the Building Act and permission for development activities under the National Land Planning and Utilization Act differ in the legislative purpose, criteria for the permit and permission effect of each system, respectively, and thus, the building owner

(2) However, Article 11(5)3 of the Building Act provides for the legal fiction of relevant authorization and permission under the National Land Planning Act, which can be deemed as having obtained permission for development activities under the National Land Planning Act through prior consultation with the relevant administrative agency for the purpose of procedural fire-fighting. On the other hand, Article 57(1) of the National Land Planning Act provides that a person who intends to engage in development activities shall submit an application accompanied by a plan for the construction of infrastructure following the development activities or the securing of sites necessary therefor, prevention of danger and injury, prevention of environmental pollution, landscape, landscaping, etc., to the person entitled to permission for development activities. However, among those subject to permission for development activities, Article 11(5)3 of the Building Act provides that a person who intends to “construction of a building or construction of a structure subject to

The purpose of the Building Act’s legal fiction of authorization is to simplify the relevant counter to a building administrative agency in relation to the legal fiction of authorization and permission, simplify the procedure, and reduce the cost and time, thereby protecting the rights and interests of the people, not to exclude all the review on the requirements for authorization and permission under the relevant laws on the legal fiction of authorization and permission (see Supreme Court en banc Decision 2010Du14954, Jan. 20, 201).

(3) Comprehensively taking account of the contents, structure, and legislative intent of the above provisions, a building owner does not need to separately apply for a building permit under the Building Act and a building permit under the National Land Planning Act (construction of a building), but should ensure that whether to issue two permits through the legal fiction system related to the building permit procedure under the Building Act is concurrently examined and determined. In other words, a building owner shall submit to a building administrative agency an application for a building permit under the Building Act, along with necessary materials for the examination of a building permit under the National Land Planning and Utilization Act (construction of a building). The building administrative agency should be deemed to have obtained a development permit under the National Land Planning Act (construction of a building) when issuing a building permit through prior consultation with the building permit holder.

Through this, it is also necessary to examine whether a building plan of a building owner satisfies the criteria for permission for development activities under the National Land Planning and Utilization Act in the building permission procedure under the Building Act. Even if a building plan of a building owner satisfies the criteria for permission for development activities under the National Land Planning and Utilization Act, the construction of the building in question is not permitted under the legal order. Therefore, when a building plan of a building owner fails to meet the criteria for permission for development activities under the National Land Planning and Utilization Act, the building administrative agency should not issue a building permit under the National Land Planning and Utilization Act, and shall not be treated as not deemed permission for development activities (construction of a building) under the National Land Planning and Utilization Act, and shall refuse to issue a building permit under the Building Act (see Supreme Court en banc Decision 2010Du14954, Jan. 20, 201). In the building permission procedure under the Building Act, if a building permit is issued under the Building Act without examining whether the building permit satisfies the criteria for permission for development activities under the National Land Planning and Utilization Act through prior consultation with the owner.

C. Determination on the instant case

Examining the above facts in light of such legal principles, the following determination can be made as follows.

(1) In order to construct the instant stable on the instant land, the land category of which is “the answer,” the development activities (land form and quality alteration) under the National Land Planning Act should also be permitted in addition to the construction permission under the Building Act. Nevertheless, the Defendant believed the inaccurate entry of the “building permit investigation and inspection report” submitted by the Nonparty, who was requested by the Plaintiff, and accepted the Plaintiff’s application and issued the instant building permit without properly examining whether the permission of development activities (land form and quality alteration) under the National Land Planning Act is necessary to construct the instant stable from the instant land.

(2) Meanwhile, in the examination procedure of the Plaintiff’s application for the instant building permit, the Defendant should have examined whether development activities (construction of a building) under the National Land Planning Act were permitted through prior consultation with the person holding the permission for development activities. However, the Defendant issued a building permit under the Building Act by omitting an examination on whether development activities meet the criteria under

(3) According to the records, the Plaintiff continued to assert that there was no need to obtain permission for development activities under the National Land Planning Act in addition to the building permission under the Building Act in order to build the instant livestock shed on the instant land, even after the issuance of the instant building permission, and made it clear that the Plaintiff did not intend to implement development activities under the National Land Planning and Utilization Act.

(4) Therefore, as the Plaintiff did not obtain permission for development activities (land form and quality alteration) under the National Land Planning Act, and did not meet the requirements for securing the site of the instant stable, and as well, the examination was omitted as to whether the instant stable satisfies the criteria for permission for development activities (construction of buildings) under the National Land Planning and Utilization Act in the instant building permission procedure, this constitutes a ground for revocation of the instant building permission by the Defendant

(5) Nevertheless, the lower court determined that the ground for first disposition is not recognized since permission for development activities under the National Land Planning Act is not necessary to construct the instant stable in the instant land. In so doing, the lower court erred by misapprehending the legal doctrine on the requirements for “construction site securing” of building permission under the Building Act, development activities under the National Land Planning and Utilization Act (such as changing land form and quality, and construction of buildings) permission, thereby adversely affecting the conclusion of the judgment. The allegation contained

3. Whether grounds for appeal No. 2 are acknowledged (Ground of appeal No. 2)

A. Relevant provisions and legal principles

(1) According to Article 2 subparag. 3, Article 43(1), and Article 44(1) and Article 59 [Attachment Table 4] subparag. 1(c) of the Enforcement Decree of the Environmental Impact Assessment Act, the term “small environmental impact assessment” means investigating, forecasting, and assessing the feasibility of the location and the impact on the environment at the time of implementing a development project in an area requiring environmental conservation or in an area requiring planned development due to concerns over the development. In the case of “agricultural and fishery area” under Article 6 subparag. 3 of the National Land Planning Act, a development project the area of which exceeds 7,500 square meters is subject to small environmental impact assessment, and a project operator who intends to implement the relevant development project must prepare a small environmental impact assessment report prior to obtaining approval for the relevant development project and submit it to the head of the approving agency.

(2) In this context, “project area” is the standard for determining the subject matter of a small environmental impact assessment. Considering the feasibility of the site of a development project and the purpose of a small environmental impact assessment system that intends to prepare measures for environmental conservation by investigating, forecasting, and assessing the environmental impact of the development project, it is reasonable to deem that the “project area” is the total area where the development project is performed and the project is required to obtain authorization from the relevant administrative agency in order to establish and implement the relevant development project plan.

B. Determination on the instant case

(1) According to the records, upon the Plaintiff’s application for the instant construction permit, the Plaintiff submitted a construction plan and its attached documents to the effect that only 7,457 square meters of the instant land was used as “the instant livestock shed site” and the remainder was irrelevant to the construction of the instant livestock shed. However, in the portion of 345 square meters indicated as “the site excluded,” the Plaintiff planned to install accommodation, external vehicle parking spaces, rest area, etc. of livestock pens workers, and ③ is scheduled to install access roads to livestock pens in the area of 135 square meters indicated as “the area scheduled for permission for use outside the intended purpose.”

(2) If so, ① “a site excluded” and ③ “a site subject to permission for use for non-purpose purposes” fall under a site for facilities or access roads belonging to the livestock shed of this case, but are not a site for the livestock shed of this case. In order for the Plaintiff to construct and operate the livestock shed of this case, ② permission for development activities under the National Land Planning Act, permission for farmland conversion under the Farmland Act, or permission for temporary use of farmland for other purposes should be obtained with respect to land. Therefore, a development project that constructs the livestock shed of this case is at least 7,937 square meters (=7,457 square meters + 345 square meters + 135 square meters). Thus, the “a development project that constructs the livestock shed of this case” is subject to the small-scale environmental impact assessment as stipulated in subparagraph 1(c) of Article 59 [Attachment Table 4] of the Enforcement Decree of the Environmental Impact Assessment Act. Nevertheless, the Plaintiff failed to implement the construction permission prior to the issuance of the construction permission of this case, which constitutes an unlawful construction permit and its attached documents.

(3) Nevertheless, the lower court determined that the instant livestock shed construction project was not subject to the small environmental impact assessment solely on the ground that the site area of the instant livestock shed itself was 7,457 square meters and less than 7,500 square meters. In so determining, the lower court erred by misapprehending the legal doctrine on the subject of the small environmental impact assessment, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal

4. Whether the restriction on revocation by authority of a beneficial administrative disposition violates the legal principle (ground of appeal No. 3)

A. Where there is a defect in an administrative disposition, the disposition agency may revoke it by itself even without any separate legal basis. However, when the disposition agency revokes a beneficial administrative disposition, it may revoke it only where it is highly likely to justify the disadvantage suffered by the other party to the disposition due to the public interest needs after comparing and comparing the significant public interest needs to revoke the disposition and the degree of infringement on the right to obtain benefits and legal stability to be suffered by the other party to the disposition due to the revocation. If the defect in the beneficial administrative disposition is attributable to the other party’s act of application by concealment or other improper means, the other party to the disposition is also aware that he/she acquired the benefit from the administrative disposition by himself/herself, and even if the administrative agency did not consider it, it does not constitute deviation or abuse of discretionary power (see Supreme Court Decision 2003Du4669, May 25, 2006, etc.).

B. In full view of the following circumstances, the lower court determined that the instant ex officio revocation disposition was a deviation from discretion, on the other hand, that the Plaintiff did not suffer any disadvantage due to the instant ex officio revocation disposition, while it is difficult to deem that there is a need for significant public interest to justify the Plaintiff’s disadvantage.

(1) In order to obtain the instant building permit, there is no filing of an application by either concealment of the Plaintiff’s fact or other unlawful means.

(2) There is no circumstance in violation of the regulations under the Building Act, such as the floor area ratio and building-to-land ratio, and it is possible to resolve the illegality of the instant building permit by means of less than cancelling the instant building permit, such as modifying a design for any defects discovered ex post after the issuance of the instant building permit.

(3) In order to construct and operate the instant livestock shed, the Plaintiff borrowed funds from financial institutions to purchase the instant land. If the instant livestock shed is not constructed and operated due to the revocation of the instant construction permit, the Plaintiff would incur irrecoverable damages, such as the purchase price, interest on loans, etc. invested by the Plaintiff.

(4) At the time of the instant construction permit, the Ordinance on the Restriction on Livestock Raising of Pyeongtaek-si was prohibited from raising pigs within 500 meters from the residential smuggling area, but thereafter, the said Ordinance was amended, thereby prohibiting raising pigs within 2,000 meters from the residential smuggling area. Therefore, if the instant construction permit was revoked, it would be impossible for the Defendant to supplement the matters incurred in the instant ex officio revocation and to obtain the building permit again under the Building Act.

(5) The Plaintiff’s construction plan for the livestock shed of this case violates the “Prohibition of Farmland Division” under Article 22(2) of the Farmland Act, but it is possible to supplement it, and there is no other violation of the Farmland Act.

(6) There is no evidence to deem that soil or water pollution occurs or malodor, etc. is likely to occur in the construction and operation of the instant stable in the instant land beyond the acceptable limit of neighboring residents.

C. However, examining the above circumstances as seen earlier and the following circumstances revealed through the records in light of the relevant legal principles, it is difficult to accept the judgment of the court below as it is.

(1) The instant ex officio revocation disposition was not made on the ground that the Plaintiff’s construction plan did not meet the criteria for development activities under the National Land Planning Act, but was made on the ground that, in the process of issuing the instant building permit, it did not properly examine whether the criteria for development activities under the National Land Planning Act have been met or the impact on the surrounding environment have been met. As to this, if the Plaintiff again filed an application for a building permit under the Building Act, along with data to determine whether the Plaintiff satisfies the criteria for permission for development activities under the National Land Planning Act and a small-scale environmental

(2) Even in cases where the relevant statute is amended, unless otherwise provided in the transitional provision, an administrative disposition shall be based on the amended statute that enters into force at the time of the disposition and the standards set thereon. Even in cases where the amended statute provides a legal effect more unfavorable than the previous one in relation to the property rights of the people with respect to the existing facts or legal relations subject to the application of the amended Act, if such facts or legal relations are not already completed or terminated before the enforcement of the amended Act, they shall not be deemed an infringement of property rights by retroactive legislation prohibited under the Constitution. In relation to the application of such amended Act, there is room for limiting the application of the amended Act in order to protect the trust of the people with respect to the existence of the statute prior to the amendment if it is deemed that the trust of the people is more protected than the public interest demand for the application of the amended Act (see Supreme Court Decision 97Nu13818, Mar. 10,

(3) The Defendant trusted the inaccurate statement in the “Building Permit Investigation and Inspection Report” submitted by the Nonparty. In order to construct the instant stable in the instant land without properly examining whether the permission for development activities under the National Land Planning Act is necessary or whether the Plaintiff’s construction plan satisfies the criteria for development activities. In other words, the instant building permit is issued by mistake of the Defendant. The issue of whether the building owner is responsible for the error of an administrative agency should be determined based on both the building owner and his/her agent and the person concerned, such as the respondent (see, e.g., Supreme Court Decision 2016Du36079, Jul. 27, 2016). The Nonparty, as a certified architect who designed the instant stable at the Plaintiff’s request, may be deemed to have prepared and submitted a protocol with incorrect contents for the Plaintiff’s interest, and even if the construction permission was granted under Article 27(1) of the Building Act, the Nonparty’s construction permit was prepared and submitted to the Nonparty’s agent for the purpose of conducting on-site investigation and verification, not for the Nonparty.

(4) The Plaintiff shall conduct a small-scale environmental impact assessment under the Environmental Impact Assessment Act in order to develop a development project that constructs the instant stable. Nevertheless, it may be recognized that the Plaintiff had the intent to make the instant construction project, which is not subject to a small-scale environmental impact assessment, to deem that: (a) the Plaintiff applied for the instant building permit, and (b) the land excluded from the livestock shed itself; and (c) the access road site is artificially divided as if the site area of the livestock shed itself is a separate one; and (d) the construction plan and its attached documents are less than 7,50 square meters, which are the standard size of the project subject to a small environmental impact assessment in an agricultural and forest area.

(5) Even if the Defendant was negligent in believing the Plaintiff’s construction plan and its accompanying documents, the Defendant’s mistake was caused by the Plaintiff or is also responsible to the Plaintiff. Therefore, the Plaintiff’s trust in the continuation of the instant construction permit is not worthy of protection.

(6) According to the reasoning of the lower judgment, the Plaintiff purchased the instant land on November 9, 2016 and completed the registration of ownership transfer on December 13, 2016, and thereafter established the right to collateral security of KRW 720,000,000 for the maximum debt amount to financial institutions on the same day. However, on December 14, 2016, the Plaintiff applied for a building permit under the Building Act and was issued the instant building permit on January 12, 2017, upon receipt of an application for the “predetermination on the location and scale of the building” under Article 10 of the Building Act before the Plaintiff purchased the instant land, and did not purchase the instant land by trust. The Plaintiff could recover the purchase fund of the instant land, and the Plaintiff cannot be deemed as having commenced or completed the construction work, and thus, it is difficult to deem that there is a substantial financial loss or damage to the Plaintiff, if the instant building permit is revoked.

(7) The criteria for permission for development activities under the National Land Planning Act are many parts of the criteria for permission and prohibition requirements as indefinite concepts, and thus, whether such requirements are satisfied belongs to the discretionary jurisdiction of an administrative agency. Therefore, in principle, the judicial review of such requirements is limited to whether there is deviation or abuse of discretionary authority in consideration of the room for discretion to determine the public interest of the administrative agency. In particular, when examining whether there is deviation or abuse of discretionary authority in relation to the permission of an administrative agency for development activities likely to damage or pollute the environment, it shall be determined carefully by taking into account the legislative purport of various regulations on the balance of rights and interests and the protection of environmental rights among interested parties in conflict with those of the relevant region, such as the actual use of land and living environment of the relevant region. Determination of discretion by an administrative agency on the requirements requiring prediction of any uncertain situation and ripple effect, such as “confluence of environmental pollution” should be widely respected unless there are circumstances such as where the content is considerably lack of rationality or when compared with profits or values that are clearly contrary to the principle of equity or proportionality (see, e.g.

D. Nevertheless, the lower court determined that the instant disposition of ex officio revocation was an unlawful disposition that deviates from discretion, contrary to the foregoing legal doctrine on the restriction on revocation of the authority of the beneficial administrative disposition. In so determining, the lower court erred by misapprehending the legal doctrine on the restriction on revocation of authority of the beneficial administrative act, and the deviation and abuse of discretionary power, thereby adversely affecting the conclusion of the judgment.

5. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Jae-chul (Presiding Justice)