[1] In a case where a judgment revoking an illegal administrative disposition becomes final and conclusive, the meaning of the final and conclusive power as its validity in a case where the measures to be taken by an administrative agency and the administrative disposition are determined after

[2] Criteria for determining illegality of a disposition that is subject to dispute in a resident lawsuit under Article 17 (1) of the Local Autonomy Act, and whether illegality of disposition in a resident lawsuit should be determined only on the basis of whether the pertinent disposition causes loss to the finance of the local government (negative)

[3] Relationship between the Public Property and Commodity Management Act and the Road Act as applicable to roads falling under public property

[4] Acts and subordinate statutes applicable preferentially to the occupation and use of roads, and whether Article 13 of the former Public Property and Commodity Management Act applies to such cases (negative)

[5] In a case where Gap church purchased part of the land designated as a district unit planning zone and applied for permission to occupy and use the above road and the above road and the above road and the road and the above road and the above road and the road and the above facilities were installed on the underground of the newly constructed church building including the above road and the above road and the above road and the road and the road and the road and the road and the above road and the road and the road and the above road and the road and the road and the above road and the road and the road and the above road and the road and the above road and the road and the road and the above road and the road and the road are applied to Eul for the use of the above road and the underground

[6] Whether the legal principles on restrictions on cancellation and withdrawal of beneficial administrative disposition apply to revocation of administrative disposition by revocation suit (negative)

[7] Although the legal text is ambiguous, it is possible to confirm the meaning of the legal text through a judge's supplementary value judgment, and where such supplementary interpretation is unlikely to depend on the individual intent of the interpreter, whether it is contrary to the principle of clarity (negative)

[8] Whether the "matters concerning the acquisition, management, and disposal of property" under Article 17 (1) of the Local Autonomy Act is against the principle of clarity (negative)

[1] When a judgment revoking a certain administrative disposition becomes final and conclusive by judging it illegal, the administrative agency has a duty to take measures again or to remove other unlawful results while excluding the grounds for illegality confirmed by the judgment according to the binding force of the revocation judgment (Article 30 of the Administrative Litigation Act). In addition, where an administrative disposition becomes final and conclusive due to the lapse of the appeal period, its final and conclusive effect means that the person who suffered legal interest due to the disposition cannot dispute the validity of the disposition or the ruling in question, and further, the factual or legal judgment, which forms the basis of the disposition, is final and conclusive, and the parties or the court cannot assert or make contradictory arguments or judgments because it is bound by the parties or the court.

[2] In light of the contents and structure of Articles 16, 17(1), 17(2)2, and 17 of the Local Autonomy Act, the illegality of a disposition that became the object of dispute in a resident lawsuit should be determined on the basis of whether the disposition violates all laws and regulations that form an objective legal order, such as the Constitution, laws, subordinate laws and regulations, and the general principles of law, as in an administrative litigation litigation under the Administrative Litigation Act, and it should not be determined on the basis of whether the pertinent disposition causes loss to the local government’s finance.

[3] In full view of the contents and structure of relevant provisions such as Articles 1 and 2 of the former Public Property and Commodity Management Act and Article 1 of the Road Act (amended by Act No. 1006, Feb. 4, 2010) and the legislative purpose of the two Acts, the Public Property and Commodity Management Act has the character of a general law that regulates the general public concerning the acquisition, management, and disposal of public property and commodities. On the other hand, the Road Act is a special law law that regulates public property and commodity in consideration of the functional characteristics of the road, which is a facility provided to the general public for the traffic of the general public, and the road is a special law that preferentially applies to the public property and commodity management

[4] In full view of the contents and structure of Article 38 of the former Road Act (amended by Act No. 10156, Mar. 22, 2010); each subparagraph of Article 28(5) of the former Enforcement Decree of the Road Act (amended by Presidential Decree No. 24205, Nov. 27, 2012; hereinafter the same) and Article 28(1) [Attachment Table 1-2] of the former Enforcement Decree of the Road Act, which set the structure standards for structures or facilities subject to permission to occupy and use a road, and the relationship between the former Public Property and Commodity Management Act (amended by Act No. 1006, Feb. 4, 2010; hereinafter the “former Public Property Act”) and the former Public Property Act. As such, the above provisions of the Road Act preferentially apply to the occupation and use of a road, and Article 13 of the former Public Property Act does not apply.

[5] In a case where Gap church purchased part of the land designated as a district unit planning zone and applied for permission to occupy and use the above underground section of the road to the head of the Gu for the purpose of constructing the passage of the underground parking lot in the underground, and as part of the site of the wedding facility constructed in the underground space, and the head of the Gu of Eul applied for permission to occupy and use the above underground section of the road from April 9, 2010 to December 31, 2019, and where Gap church installed facilities such as wedding dividends to the underground of the new church building, including the above underground part of the road, the case affirming the judgment below that Gap church violated the above principles of permission to occupy and use the road in proportion to the above underground safety since it is difficult to reinstate the underground occupancy through installation of the underground structure, such as wedding dividends, street rooms, and broadcasting rooms, and it is difficult for Gap church to recover it to its original state easily and continuously because it is difficult to reject an application for permission to occupy and use the road in the future.

[6] The legal principle that the exercise of the right of revocation, etc. against the beneficial administrative disposition may be allowed only when it is necessary for the important public interest to justify the infringement of the right of vested interests or when it is necessary to protect the interests of a third party, is applicable only to the case where the disposition agency cancels and withdraws the beneficial administrative disposition ex officio, and does not apply to the case

[7] The principle of clarity, which is a expression of the principle of a rule of law, is required for all fundamental rights restriction legislation, but it is impossible or considerably difficult to require the principle of clarity to be strictly implemented. Therefore, the use of abstract general provisions and uncertain concepts in legislative technology is inevitable. Therefore, even if a certain degree of ambiguity is ambiguous in the legal text, it is possible to confirm the meaning of the legal text through a judge’s supplementary value judgment, and such supplementary interpretation is unlikely to depend on the personal desire of the interpreter, it cannot be said that it goes against the principle of clarity.

[8] Even if Article 17(1) of the Local Autonomy Act uses the general and abstract term “acquisition, management and disposal of property” as “acquisition, management and disposal of property,” the concept of “property,” “acquisition, management, and disposal” is widely used by many laws. In particular, it is possible to grasp the meaning through the provisions of relevant Acts, such as the Local Autonomy Act which regulates matters concerning the property of a local government and the former Public Property and Commodity Management Act (amended by Act No. 1006, Feb. 4, 2010). Whether any act concerning “acquisition, management, and disposal of property” is subject to a lawsuit by a resident, the court should review and determine it in detail in consideration of the legislative intent of the resident litigation system.

Furthermore, the Supreme Court has presented a specific standard for determining the subject matter of a resident suit by holding that “where a permit to occupy and use a road or other public object or a public object is assessed to be aimed at realizing and utilizing the value of the use regardless of the original function and purpose of the road, etc., it shall be deemed as the management and disposition of the property subject to a resident suit.”

Therefore, the "matters concerning the acquisition, management, and disposal of property" in Article 17 (1) of the Local Autonomy Act does not contravene the principle of clarity.

[1] Articles 1 [General Administrative Disposition] and 30 of the Administrative Litigation Act / [2] Articles 16, 17 (1), 17 (2) 2, and 17 of the Local Autonomy Act / [3] Articles 1 and 2 of the former Public Property and Commodity Management Act (Amended by Act No. 1006, Feb. 4, 2010); Article 1 of the Road Act / [4] Article 13 of the former Public Property and Commodity Management Act (Amended by Act No. 1006, Feb. 4, 2010); Article 15 of the former Enforcement Decree of the Public Property and Commodity Management Act (Amended by Presidential Decree No. 2541, Jul. 7, 2014); Article 17 (2) 2 of the former Road Act (Amended by Act No. 10156, Mar. 22, 2010); Article 38 (1) 2 of the former Enforcement Decree of the Road Act / [2] Article 5 (2) of the former Enforcement Decree of the Road Act / [see Article 17 (2 (2)

[1] Supreme Court Decision 2002Du11288 Decided July 8, 2004 (Gong2004Ha, 1359), Supreme Court Decision 2013Du27517 Decided October 29, 2015 (Gong2015Ha, 1808) / [3] Supreme Court Decision 80Nu618 Decided November 10, 1981 (Gong1982, 50), Supreme Court Decision 2010Du28106 Decided May 26, 201 (Gong201Ha, 1313) / [6] Supreme Court en banc Decision 90Nu9780 Decided May 14, 191 (Gong191, 1656) / [208Hun-Ba decided December 26, 2012] Supreme Court en banc Decision 2008Hun-Ba374 decided May 26, 2012]

Plaintiff 1 and five others (Law Firm Lee & Lee, et al., Counsel for the plaintiff-appellant)

The head of Seocho-gu Seoul Metropolitan Government (Law Firm Sejong, Attorneys Lee Jong-hee et al., Counsel for the defendant-appellant)

The Love Association of Korea Egyptians (Law Firm LLC et al., Counsel for the defendant-appellant)

Supreme Court Decision 2014Du8490 Decided May 27, 2016

Seoul High Court Decision 2017Nu31 decided January 11, 2018

All appeals are dismissed. The costs of appeal are assessed against the Defendant’s Intervenor, and the remainder are assessed against the Defendant.

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

1. Whether the permission to occupy and use the road of this case is subject to resident litigation

A. According to Article 8(2) of the Administrative Litigation Act and the latter part of Article 436(2) of the Civil Procedure Act, the court to which the case was remanded or transferred shall be bound by the court of final appeal based on the factual and legal judgment that the court of final appeal renders as the ground for reversal. Therefore, according to the binding force of the Supreme Court Decision on the reversal and return of the Supreme Court Decision 2014Du8490 Decided May 27, 2016, the court below did not err by misapprehending the legal principles on the legal nature of the permission to occupy and use the road of this case and the subject matter of resident litigation, contrary to what is alleged in the grounds of final appeal.

B. Article 17(1) of the Local Autonomy Act provides that a resident who requested an “matters concerning the acquisition, management, and disposal of property” may file a lawsuit against the head of the pertinent local government with regard to the fact that he/she neglected to perform an unlawful act or work related to the matters requested for inspection, and does not limit the subject matter of a resident’s lawsuit to the “acquisition, management, and disposal of property causing damages to local finance”. Therefore, the allegation in the grounds of appeal that the instant permission to occupy and use the road is not subject to a resident’s lawsuit as it is inconsistent with the language and text of the above Local Autonomy Act stipulating the subject matter of a resident’s lawsuit

2. Whether the period for filing a lawsuit expires;

The lower court determined as follows: (a) the Plaintiffs filed a petition for a resident audit on December 7, 201, which was within two years from April 9, 2010 when the Defendant issued permission to occupy and use the instant road; (b) the period for filing a resident audit request under Article 16(2) of the Local Autonomy Act; and (c) the Seoul Special Metropolitan City Mayor, which notified the audit results, filed the instant resident lawsuit on August 29, 2012, which was within ninety (90) days from June 1, 2012 when the Seoul Special Metropolitan City Mayor notified the audit results, followed the filing period of the resident lawsuit under Article 17(4) of the Local Autonomy Act; and (d) the filing period of the general revocation lawsuit under Article 20(1) of the Administrative Litigation Act does not apply to the

Such judgment below is just in accordance with the provisions of relevant Acts, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal principles on the resident inspection and the period of filing a lawsuit.

3. Whether the interest in a lawsuit has ceased to exist due to disputes over a disposition of building permission.

A. When a judgment revoking a certain administrative disposition becomes final and conclusive by judging it illegal, an administrative agency is obligated to take measures again or to remove other unlawful results while excluding the grounds for illegality confirmed by the judgment according to the binding force of the judgment (see, e.g., Article 30 of the Administrative Litigation Act and Supreme Court Decisions 2013Du27517, Oct. 29, 2015). In addition, where an administrative disposition becomes final and conclusive due to the expiration of the objection period, the final and conclusive effect of the administrative disposition cannot be contested by the person whose legal interest was infringed due to the disposition in question, and as such, it does not recognize res judicata as to the judgment, the factual or legal judgment which forms the basis of the disposition does not become final and conclusive, and it does not make any assertion or judgment inconsistent with the parties or the court bound by it (see, e.g., Supreme Court Decision 2002Du1288, Jul. 8, 2004).

B. When the judgment revoking the permission to occupy and use the road of this case becomes final and conclusive in the resident lawsuit of this case, the defendant is able to remove the illegal state due to the permission to occupy and use the road of this case, such as the suspension of occupation and use of the road of this case and the imposition of administrative vicarious execution or non-performance penalty, in accordance with Articles 73, 96, and 100 of the Road Act, as part of the measure to remove illegal result according to the binding force of the revocation judgment.

In addition, although the building permit of this case is not revoked or its validity is not extinguished due to the direct effect of the cancellation judgment, the building permit of this case, which was based on the premise that the validity of the permission of this case exists, is partly lost based on its legal and factual basis. Thus, the defendant is obligated to take measures, such as revocation or alteration ex officio in accordance with certain requirements to the extent that it complies with the legal principles on the restrictions on ex officio revocation of the permission of this case. Therefore, even if the plaintiffs cannot directly dispute the validity of the building permit of this case in the resident lawsuit of this case, the grounds for denying the interests of

C. In the same purport, the lower court determined that even if the Plaintiffs were unable to directly dispute the validity of the instant building permit, even if the judgment dismissing the claim for revocation of the instant building permit in the lawsuit filed by the residents of the instant case, the interest in the lawsuit seeking revocation of the instant building permit is not extinguished. In so doing, the lower judgment is based on the legal doctrine as seen earlier, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine on

4. Criteria for examining the illegality of dispositions in residents' lawsuits;

A. Article 16 of the Local Autonomy Act provides that residents above a certain number of local governments may file a lawsuit with the head of the pertinent local government for an audit, where the process of performing the affairs belonging to the authority of the local government and its head is deemed to violate Acts and subordinate statutes or significantly undermine the public interest. Article 17(1) of the same Act provides that residents above a certain number of local governments may file a lawsuit with the head of the relevant local government, “the fact that the local government has neglected to impose and collect public funds, such as the sale, lease, contract, contract, or other contract to which the local government is a party, or other contract, or public funds such as local tax, user fees, fees, fines, and fines.”

Furthermore, Article 17(2)2 of the Local Autonomy Act provides for “a lawsuit demanding the cancellation or modification of the pertinent act, which is an administrative disposition, or demanding the confirmation of the validity or existence of such act,” as the type of litigation instituted by residents pursuant to Article 17(1) of the Local Autonomy Act, and Article 17(17) of the Local Autonomy Act provides that a lawsuit under Article 17(1) shall be governed by the Administrative Litigation Act, except as otherwise provided

B. In full view of the contents and structure of the relevant provisions, as seen below, the legislative intent and legal nature of the resident litigation system, etc., the illegality of a disposition that became the object of dispute in a resident lawsuit, as in an administrative litigation under the Administrative Litigation Act, should be determined based on whether the disposition violates all the legal norms constituting an objective legal order, such as the Constitution, laws, subordinate laws and regulations, and the general principles of law, as in an administrative litigation under the Administrative Litigation Act, and should not be determined on the basis of

(1) Article 17(1) of the Local Autonomy Act only lists the subject matter of a resident lawsuit, but does not separately stipulate the criteria for examination of illegality of a disposition in a resident lawsuit, and Article 17(2)2 does not require that the requirement for the revocation or change of an administrative disposition would cause loss to the finance of the local government as a requirement for the revocation or change of an administrative disposition.

(2) Under the Local Autonomy Act amended by Act No. 7362 of Jan. 27, 2005, a resident suit is a system introduced for the purpose of enhancing the accountability of local administration by expanding the participation of residents by demanding a court to correct the illegal acquisition, management, disposal, etc. of the pertinent local government’s property, and constitutes a civil suit under the Administrative Litigation Act. A civil suit is a “litigation instituted by the State or a public organization to seek correction, regardless of its own legal interest, where the State or the public organization committed an act in violation of the law,” and is distinguishable from an appeal suit filed by a person having a legal interest in seeking the revocation of the disposition (Articles 3 subparag. 1 and 12 of the Administrative Litigation Act).

As can be seen, in order to supplement the problems that can not file an appeal suit seeking revocation of the acquisition, management, disposal, etc. of property illegal by the relevant local government because there is no legal interest to seek revocation in the case of a general resident belonging to a local government, the system was introduced for the purpose of recognizing a legal status that can file a lawsuit demanding revocation, etc. of disposition on the premise that a certain number of residents may undergo the procedure claiming an audit pursuant to Article 16 of the Local Autonomy Act. It is difficult to find any ground to view that the legislative intent to restrict the level of examination of the principal agenda of the lawsuit was reflected in the local government’s finance as to whether

(3) As seen earlier, Article 17(17) of the Local Autonomy Act provides that a resident lawsuit shall be governed by the Administrative Litigation Act, except as otherwise expressly provided for in the Local Autonomy Act. Article 46(1) of the Administrative Litigation Act provides that a lawsuit seeking revocation of a disposition as a public lawsuit shall apply mutatis mutandis to a lawsuit seeking revocation of a disposition, unless contrary to its nature. Therefore, the resident lawsuit and the revocation lawsuit shall not be treated differently, unless otherwise provided for in the Local Autonomy Act with respect to the subject matter, filing period, standing to sue, etc. of a resident lawsuit. Thus, the examination of illegality in a resident lawsuit demanding revocation of an administrative disposition shall be conducted in the same way as the examination of illegality

(4) The Supreme Court’s established view that the subject matter of a lawsuit seeking revocation is “generality of disposition’s illegality” (see, e.g., Supreme Court Decisions 89Nu5386, Mar. 23, 1990; 92Nu1728, Mar. 8, 1994). In a lawsuit seeking revocation, the court shall determine the illegality of disposition based on whether the pertinent disposition violates all legal norms that form an objective legal order, such as the Constitution, laws, subordinate laws and regulations, and the general principles of the law, and the same applies to residents’ lawsuit.

C. In the same purport, the lower court determined that the illegality of a disposition in a resident lawsuit should be interpreted as the same as that of the “general” in an appeal litigation, and that the relevant disposition should be revoked in a case where it is unlawful by deviating from and abusing discretion by violating the general principles of law, such as the principle of proportionality, equality, and trust protection, as well as the cases where the relevant disposition is explicitly in violation of the financial accounting-related laws. In so doing, the lower court did not err by misapprehending the legal doctrine

5. Whether Article 13 of the former Public Property and Commodity Management Act (amended by Act No. 1006, Feb. 4, 2010; hereinafter “former Public Property Act”) was violated

A. (1) The former Public Property Act is an Act enacted for the purpose of protecting public property and commodities and promoting the proper acquisition, maintenance, preservation, operation, and disposal thereof (Article 1), and stipulates that the acquisition, maintenance, preservation, operation, and disposal of public property and commodities shall be governed by the former Public Property Act, except as otherwise provided for in other Acts (Article 2).

On the other hand, the Road Act comprehensively regulates not only the Act enacted for the purpose of contributing to the development of traffic and the enhancement of public welfare by prescribing matters concerning the formulation of road planning, designation or approval of routes, management, facility standards, conservation, and expenses for the maintenance of road networks and appropriate road management (Article 1), but also the Act on the Management of State Properties and Local Finance, but also the Act on the Management of Roads including the cases where the site for roads belongs to an individual's ownership.

(2) Comprehensively taking account of the contents and structure of the aforementioned relevant provisions and the legislative purpose of the two Acts, the Public Property and Commodity Management Act has the nature of the general law governing the general public’s acquisition, management, and disposal of public property and goods. On the other hand, the Road Act, regardless of its ownership, should be deemed as a special law that regulates public law by taking into account the functional characteristics of a road, which is a facility provided for the general public for traffic, and where a road falls under public property, it should be deemed as a special law that takes precedence over public property and commodity management (see, e.g., Supreme Court Decisions 80Nu618, Nov. 10, 1981; 201Du28106, May 26, 2011)

B. (1) Article 13 of the former Enforcement Decree of the Public Property and Commodity Management Act (amended by Presidential Decree No. 2541, Jul. 7, 2014) provides that no person, other than the head of the relevant local government, may construct structures, such as buildings, ditches and bridges, and other permanent structures on public property. The proviso provides that a person, other than the head of the relevant local government, may construct permanent structures on public property, such as buildings, ditches and bridges. Article 9 of the former Enforcement Decree of the Public Property and Commodity Management Act (amended by Presidential Decree No. 25441, Jul. 7, 2014) provides that “Where a person, etc. installs structures on the public property, on or under the ground of the public property to the extent that does not impede the current use and utilization of public property of the relevant local government” (Article 9).

On the other hand, Article 38 of the former Road Act (amended by Act No. 10156, Mar. 22, 2010; hereinafter “former Road Act”) provides that a person who intends to build, rebuild, alter, or remove structures, things, or other facilities, or to occupy and use a road for other purposes, shall obtain permission from a road management agency (Article 1) and shall delegate necessary matters concerning the types of structures, things, and other facilities for which permission to occupy and use a road may be granted to him/her (Article 2(2)). Article 28(5) of the former Enforcement Decree of the Road Act (amended by Presidential Decree No. 24205, Nov. 27, 2012; hereinafter “former Enforcement Decree”).

(2) In full view of the contents and system of Article 38 of the former Road Act, each subparagraph of Article 28(5) of the former Enforcement Decree of the Road Act, and the relationship between the Public Property Act and the Road Act, which set the structure standards for structures or facilities subject to permission to occupy and use roads, the road law is a special provision on Article 13 of the former Public Property Act. As such, the above provisions of the road law regarding the occupation and use of roads are preferentially applied and Article 13 of the former Public Property Act is not applicable.

C. The lower court determined that the permission to occupy and use the road of this case was unlawful in violation of Article 13 of the former Public Property Act, on the ground that Article 13 of the former Public Property Act applies to the permission to occupy and use the road of this case and the permanent facilities on the underground of the road to be installed by the Defendant’s assistant participant through the permission to occupy and use the road of this case do not constitute permanent facilities permitted to construct the public property pursuant to the proviso to Article 13

In light of the aforementioned legal principles, the lower court erred by misapprehending the legal doctrine on the relationship between the Public Property Act and the Road Act, but, as seen thereafter, the lower court’s conclusion that the instant permission to occupy and use the road was unlawful by abusing and abusing discretion is justifiable, it did not err by misapprehending the conclusion of the judgment.

6. Whether there is an error of deviation or abuse of discretionary power;

A. The following facts are revealed according to the records and the reasoning of the lower judgment.

(1) In the course of constructing a church building after purchasing 6,861.2 square meters of the land of Seocho-gu Seoul ( Address omitted), which was designated as a district unit planning zone at the time of June 1, 2009, the Defendant Intervenor filed an application with the Defendant for permission to occupy and use the above part of the underground part of the road for the purpose of constructing a passage to enter the underground parking lot and using it as a part of the site of the distribution facility constructed in the underground space, which is located in the national map owned by Seocho-gu Seoul Metropolitan Government.

(2) On April 6, 2010, the Defendant issued the instant permission to occupy and use the road of “7 meters in width x 154 meters in length” (hereinafter “road in this case”) from April 9, 2010 to December 31, 2019, with additional clauses stating that the Defendant shall contribute the 325 square meters of the underground floor on the south side of the new church building as a childcare center. The Defendant issued the instant permission to occupy and use the road of “7 meters in width x 154 meters in length” (hereinafter “road in this case”) among the total width of 12 meters in total, including the four meters in width that the Intervenor planned to expand and contribute to the Defendant in accordance with the district unit plan among the above Nauri roads.

(3) After the Defendant’s Intervenor’s permission to occupy and use the instant road, the Defendant’s Intervenor installed facilities such as the main (e.g., distribution), video exhibition room, school building, sexual waiting room, broadcasting room, etc., from the 6th to the 8th underground level underground in the underground floor of the new church building including the instant underground part of the road.

B. The court below rejected the defendant's assertion that the permission to occupy and use the road of this case violated the principle of proportionality and equity, on the ground that it is not easy to restore the land to its original state, and that the construction of underground structures, such as weddings, Seongbuk rooms, and broadcasting rooms, entails considerable risk and responsibility for maintenance, management, and safety, and that if permission to occupy and use a similar form is granted, it is difficult to refuse an application to grant permission to occupy and use the road in the future, and thus it is likely to cause danger to public safety because the underground part of the road of this case is not used indiscreetly and continuously because the underground part of the road of this case is actually permanently and continuously used as part of a church building, and it is impossible to flexibly and dynamicly cope with changes in the surrounding circumstances of the road.

C. Examining the reasoning of the lower judgment in light of the foregoing provision and relevant legal doctrine and the record, the lower court did not err in its judgment by misapprehending the legal doctrine on deviation, abuse, or planning discretion, as otherwise alleged in the grounds of appeal.

7. The remaining grounds of appeal

A. Whether the legal principle on cancellation of beneficial administrative disposition is applied to a revocation suit

The legal doctrine that the exercise of the right to revoke, etc. against a beneficial administrative disposition may be permitted only when there is a need for important public interest or when there is a need for the protection of interests of a third party to justify the infringement of the right to obtain benefits (see, e.g., Supreme Court Decision 90Nu9780, May 14, 1991). It is only applicable to cases where the disposition authority cancels and withdraws the beneficial administrative disposition ex officio, and does not apply to cases of revocation of litigation. In the judgment of the court below to the same purport, the court below did not err by

B. Whether the assessment is subject to a judgment

The lower court determined that the ruling of assessment stipulated in Article 28(1) of the Administrative Litigation Act, if an illegal administrative disposition is revoked or modified, is extremely exceptionally acknowledged only when it is extremely inappropriate for public welfare, and thus, the permission to occupy and use the road of this case does not need public interest to continue its effect, and on the ground that the Defendant’s supplementary measure taken by the road management authority would make it difficult to resolve the illegal state, the court below did not recognize the justification to render a ruling on the permission to occupy and use the road

Examining the reasoning of the lower judgment in light of the relevant legal doctrine, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine regarding the requirements for judgment of assessment, or by failing to exhaust all necessary deliberations regarding the

C. Whether Article 17(1) of the Local Autonomy Act “matters concerning the acquisition, management, and disposal of property” (hereinafter “instant legal provision”) is unconstitutional

(1) The principle of clarity, which is a expression of the principle of a rule of law, is required for all fundamental rights limitation legislation, but it is impossible or considerably difficult to require the principle of clarity to be strictly implemented. Therefore, the use of abstract general provisions and uncertain concepts in legislative technology is inevitable. Therefore, even if the legal text is ambiguous to a certain degree, the meaning of the legal text can be confirmed through a judge’s supplementary value judgment, and such supplementary interpretation cannot be deemed contrary to the principle of clarity if there is no possibility that it will depend on the personal desire of the interpreter (see, e.g., Constitutional Court en banc Decision 2012Hun-Ba375, Dec. 26, 2013).

Even if the legal provision of this case uses the general and abstract term "acquisition, management, and disposal of property", the term "property", "acquisition", "management", and " disposal" are widely used by many Acts. It is possible to grasp the meaning through the provisions of the relevant Acts, such as the Local Autonomy Act which regulates matters concerning the property of local governments, and the former Public Property Act. Whether the act of "acquisition, management, and disposal of property" is subject to a resident lawsuit is ultimately the area to be deliberated and determined by the court in detail in consideration of the legislative intent of the resident lawsuit system.

Furthermore, the Supreme Court held that "where permission to occupy and use public goods, such as roads, or public goods, or public goods are assessed to realize and utilize their utility regardless of their original functions and purposes, regardless of their original functions and purposes, such permission shall be deemed to fall under the management and disposition of property subject to a resident lawsuit (see Supreme Court Decision 2014Du8490, May 27, 2016)."

Therefore, the legal provisions of this case are not contrary to the principle of clarity.

(2) Furthermore, the disadvantage suffered by the Defendant’s Intervenor due to the cancellation of the permission to occupy and use the instant road is only an effect arising from the combination of the facts that Article 17(2)2 of the Local Autonomy Act requires the cancellation or modification of an illegal administrative disposition, provides a residents’ lawsuit system demanding confirmation of the validity or existence of an administrative disposition, and that the permission to occupy and use the instant road should not have been granted for the first time since it was originally illegal, and cannot be deemed as an unconstitutional result resulting from the legal provision itself.

(3) Therefore, we cannot accept the allegation in the grounds of appeal that the legal provision of this case goes against the principle of clarity and brings about a serious restriction on the relevant fundamental rights contrary to the trust of the other party to disposition.

8. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the Intervenor and the remainder are assessed against the Defendant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-hyung (Presiding Justice)