[1] In a lawsuit seeking the revocation of an administrative disposition, whether an administrative agency can assert a separate fact that does not coincide with the original reason for disposition (negative) and the standard for determining the identity of the basic fact in this case

[2] The case holding that in case where an administrative agency's notification of improper disposal of waste disposal business plan was made and it was difficult for the reason that it would cause damage to the agricultural management of nearby farmland and the maintenance of agricultural and fishing villages life when it installed waste disposal facilities in the planned project area, and that in a lawsuit seeking revocation of the above administrative disposition, it is not appropriate as a site for waste disposal facilities because it is anticipated that it would cause damage to neighboring residents' living or surrounding agricultural activities when installing waste disposal facilities in the planned project area, the two grounds for the administrative disposition are identical to basic facts on the grounds that the two grounds for the disposition are the problem of damage to neighboring residents' living or surrounding agricultural activities, and therefore

[1] Articles 1 [general Administrative Disposition], 19, and 27 of the Administrative Litigation Act / [2] Articles 19 and 27 of the Administrative Litigation Act / [2] Articles 19 and 27 of the Administrative Litigation Act / Article 26 (2) of the Wastes Control Act

[1] Supreme Court Decision 200Du8684 Decided September 28, 2001 (Gong2001Ha, 2371) Supreme Court Decision 2001Du4030 Decided February 13, 2004 (Gong2004Sang, 473) Supreme Court Decision 2002Du5016 Decided May 28, 2004 (Gong2004Ha, 1082) Supreme Court Decision 2004Du10883 Decided April 15, 2005 (Gong2005Sang, 754)

Seoul High Court Decision 200Na1447 delivered on August 1, 200

Daegu Local Government Governor

Daegu High Court Decision 2004Nu849 delivered on November 26, 2004

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

We examine the grounds of appeal.

1. As to the change and addition of the reason for the disposition

In an appeal litigation seeking the revocation of an administrative disposition, from the perspective of substantive rule of law and trust protection for the people who are the other party to the administrative disposition, the agency can add or change other reasons only to the extent that the original reason and basic facts are identical to those of the original disposition, and it is not allowed to assert as a ground for disposition on the grounds of separate facts not recognized as identical to the basic facts. The existence of the basic facts here is determined based on whether the social factual relations, which are the basis of the disposition, are identical in the basic point of view (see Supreme Court Decision 200Du8684, Sept. 28, 2001).

According to the records, the original ground for the disposition of this case, which the defendant used as the ground for the disposition of this case, is anticipated to cause damage to the agricultural management of neighboring farmland and the maintenance of the living environment in agricultural and fishing villages, and it is not possible to use farmland under the Farmland Act, and it is not easy to use farmland for the purpose other than the purpose of ditches under the Rearrangement of Agricultural and Fishing Villages Act. The ground for the defendant additionally asserted in the lawsuit of this case is anticipated to cause damage to neighboring residents' living or surrounding agricultural activities when installing waste disposal facilities in the planned area of this case, and it is not appropriate for the planned area of this case as a site for waste disposal facilities. Although the above two grounds are somewhat different from the legal structure, it is identical with the basic facts that the contents of the above two grounds are about damage to neighboring residents' living or surrounding agricultural activities. Thus, in light of the above legal principles, it is reasonable to determine the legitimacy of the disposition of this case by deeming the above ground additionally asserted by the defendant as the ground for disposition of this case, and there is no error of law such

However, since there is sufficient number of waste disposal businesses operated in the defendant's jurisdiction among the grounds for the defendant's additional assertion in the lawsuit in this case, the establishment of small-scale businesses like the plaintiff does not need any further establishment, it cannot be deemed that the defendant's ground for the disposition in this case is identical to the original ground for the disposition in this case. Thus, the court below erred in determining the legitimacy of the disposition in this case by deeming the above ground as one of the grounds for the disposition in this case. However, as long as the court below's determination that the project site in this case is inappropriate as waste disposal facility location is just, the disposition in this case was conducted within the scope of the defendant's discretion, regardless of the existence of the above ground, and therefore the above error committed by the court below

2. As to whether the planned project area of this case is appropriate as the site for waste disposal facilities

Examining the reasoning of the judgment below in light of the records, the court below, after compiling the adopted evidence, recognized facts as stated in its reasoning, and judged that the project site of this case is inappropriate as site for waste disposal facilities, since it is anticipated that waste disposal facilities will be installed in the prospective project site of this case and damage neighboring residents' lives or surrounding agricultural activities. There is no error of law such as misunderstanding of legal principles as to farmland or Rearrangement of Agricultural and Fishing Villages Act, violation of

3. As to the remaining grounds of appeal

According to the reasoning of the judgment below, the court below did not determine that the disposition of this case was lawful on the ground that the plaintiff's business plan is in violation of the Farmland Act or the Rearrangement of Agricultural and Fishing Villages Act, and even though the necessity of establishing a waste disposal enterprise, which is a reason not identical to the original disposition grounds and factual relations, was erroneous on the ground of the legitimate ground of the disposition of this case, this does not affect the conclusion of the judgment as seen above. Thus, although the plaintiff's business plan was not in violation of the Farmland Act or the Rearrangement of Agricultural and Fishing Villages Act, the court below erred in the judgment below, or applied the amended Enforcement Rule of the Wastes Control Act after the disposition of this case.

4. Conclusion

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.

Justices Kim Young-ran (Presiding Justice)