A. In an appeal litigation, whether a disposition agency can assert as a disposition ground on the ground that the ground of the initial disposition is not identical to the factual basis of the basic fact (negative)

B. Whether an additional or modified ground exists at the time of the initial disposition, and the parties were aware of such fact (negative)

A. In an appeal seeking the revocation of an administrative disposition, the agency may add or change other grounds only to the extent that the grounds for the original disposition are identical to the factual basis thereof, and it is not allowed to assert as grounds for disposition on the ground that there is a separate fact that is not recognized as identical to the basic factual basis.

B. The grounds for addition or alteration are not specified in the original disposition, but exist at the time of the disposition, and the parties were aware of that fact, and cannot be deemed identical to the original disposition.

Article 27 of the Administrative Litigation Act [General Case]

A. Supreme Court Decision 85Nu694 delivered on July 21, 1987 (Gong1987,1404) 88Nu6160 delivered on June 27, 1989 (Gong1989,1175) 88Nu9299 delivered on December 8, 1989 (Gong190,270)

[Defendant-Appellant] Plaintiff 1

Head of Busan Metropolitan City North Korea

Busan High Court Decision 90Gu2383 delivered on April 12, 1991

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

In an appeal litigation seeking the revocation of an 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 the agency is not allowed to assert as a reason for disposition on the ground of a separate fact that is not recognized as identical to the basic facts. Thus, the court below’s judgment to the same purport is justified. (See Supreme Court Decision 85Nu694 delivered on July 21, 1987; Supreme Court Decision 88Nu6160 delivered on June 27, 1989; Supreme Court Decision 88Nu929 delivered on December 8, 1989).

The issue is that the additional or modified reasons were not specified in the original reasons for the disposition, and if the parties had been aware of the facts at the time of the disposition, they are identical to the original reasons for the disposition, but they cannot be accepted as an independent opinion.

In addition, the theory that the provision of the Rule on the Criteria for Permission for Change, etc. of Land Form and Quality (No. 328 of the Construction Ordinance) provides that if a road is constructed in the area of change of land form and quality, a road meeting the standards of the Building Act shall be constructed and does not require the existing access roads leading to a contribution to the construction to meet the standards of the Building Act is erroneous in the misapprehension of the legal principle in the original adjudication, it shall be deemed that the ground alleged as the ground for additional disposition is not identical in the original disposition grounds and basic facts, and thus, it shall not be permitted as the ground for additional disposition.

Therefore, the appeal shall be dismissed and all costs of appeal shall be assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-ho (Presiding Justice)