In case of cancelling a beneficial administrative act;

Where there is a defect in an administrative act, the agency in charge of disposition may cancel it by itself without any separate legal basis: Provided, That where the act is a so-called beneficial administrative act that gives citizens the rights or interests, it may cancel it only when the public interest needs to cancel the act, the public interest needs to cancel the act, and the cancellation thereof is compared and compared with disadvantage such as the protection of trust and the infringement of the stability of legal life, etc., and when the public interest needs to cancel it to the extent that it is strong enough to justify disadvantage such as infringement

Article 19 of the Administrative Litigation Act

Supreme Court Decision 72Nu232 Delivered on June 26, 1973

[Judgment of the court below]

[Judgment of the court below]

Seoul High Court Decision 84Gu260 delivered on June 21, 1985

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

The ground of appeal No. 1 by the defendant's attorney is examined.

1. When there is a defect in an administrative act, a disposition agency that has performed the administrative act can cancel it on its own without any legal basis. However, when the act is a so-called beneficial administrative act that gives citizens the rights and interests, the disposition agency that has performed the administrative act may cancel it only when the public interest needs to be compared with the necessity of the public interest that should cancel the act, such as the protection of trust and the infringement of the stability of legal life, etc. to the extent that the public interest needs to be justified, such as infringement of the right of vested rights of the party, etc.

2. According to the reasoning of the judgment below, the court below revoked the above permission for accommodation business on the ground that the defendant violated the provisions of Article 2 of the Gyeonggi-do Ordinance (Ordinance No. 1163 of Jan. 30, 1982) on the ground that the above permission for accommodation business should be more than 50 meters in a straight line from the boundary of the existing site of the accommodation business under Article 2 of the above Ordinance, on the ground that the above permission for accommodation business was revoked on the ground that the above permission for accommodation business under Article 2 of the above Ordinance No. 2 of the Ministry of Health and Welfare was revoked on the ground that the above permission for accommodation business under Article 4 of the above Ordinance No. 2 of the Ministry of Health and Welfare was revoked on the ground that the above permission for accommodation business should not be revoked on the ground that the above permission for accommodation business was revoked on the ground that the above permission for the accommodation business under Article 2 of the Ordinance No. 3 of the Ministry of Health and Welfare was revoked or suspended on the ground that the above permission for the accommodation business was within 280 meters from the existing business.

3. However, Article 4-2(2) of the Lodging Business Act is limited to a case where a conditional business license is granted, and therefore, it is not related to this case, and the revocation of business license under Article 8(1) of the same Act is not limited to a case where a business license is granted, but also a case where a business license is revoked on the grounds of a business operator’s breach of duty after a business license is granted. Therefore, it is unreasonable to view that revocation on the grounds of a defect in business license itself

As mentioned above, the disposition agency which has conducted an administrative act can cancel it on its own without a separate legal basis. However, since the permission for accommodation business of this case against the plaintiff constitutes the so-called "beneficial administrative act", the court below should have compared the necessity of public interest to cancel the permission for the business of this case with the disadvantage that the plaintiff suffers due to the cancellation of the permission for the business of this case by comparing it with the necessity of public interest to cancel the permission for the business of this case and the legitimacy of the permission for the cancellation of the permission.

4. Ultimately, the judgment of the court below is erroneous in the misapprehension of legal principles as to the grounds for the right to revoke the permission of accommodation, which affected the conclusion of the judgment. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jong-soo (Presiding Justice)