2013Du19349 Revocation of revocation of revocation of the previous change of business place.

East Industry Co., Ltd.

Ansan-si Market

Seoul High Court Decision 2013Nu5830 Decided August 22, 2013

May 14, 2015

The appeal is dismissed.

The costs of appeal are assessed against the Defendant.

The grounds of appeal are examined.

1. As to the ground of appeal No. 1, where an administrative disposition generally satisfies the internal requirements for the establishment of the subject, content, procedure, and form and the external requirements for the establishment of an external indication, an administrative disposition may exist (see, e.g., Supreme Court Decision 97Nu6889, Aug. 20, 199). In a case where an administrative agency made a disposition by a document, in principle, in accordance with the language and text of the written disposition, the administrative agency shall be determined; however, the text of the written disposition is unclear.

In a case where a certain circumstance exists, the content of the disposition may be interpreted by taking into account other circumstances, such as the background of the disposition or the attitude of the other party after the disposition (see, e.g., Supreme Court Decision 2009Du18035, Feb. 11, 2010). As the interpretation of an expression of intent contained in a document submitted to an administrative agency is clearly established, the objective meaning that the other party to the disposition gave to the act of expression is clearly established. Thus, in a case where the objective meaning is not clearly revealed by the party’s language and text, the contents of the language and text, the motive and circumstances leading up to the expression of intent, the purpose and genuine intent that the party intends to achieve by the said expression of intent shall be comprehensively considered, and it shall be reasonably interpreted in accordance with logical and empirical rules, and the common sense of society (see, e.g., Supreme Court Decision 92Nu18009, Jun.

According to the reasoning of the lower judgment and the reasoning of the first instance judgment cited by the lower court, the lower court found facts as indicated in its reasoning after comprehensively taking account of the adopted evidence, and rejected the Defendant’s assertion that the instant permission notice constitutes a modified license pursuant to Article 22 of the former Construction Waste Recycling Promotion Act (amended by Act No. 11690, Mar. 23, 2013; hereinafter “former Construction Waste Promotion Act”), based on the following: (a) the language and purport of the application submitted by the Plaintiff to the Defendant on October 25, 2011; (b) the form and text of the notification that the Defendant permitted the transfer of the place of business to the Plaintiff on November 22, 2011; and (c) the circumstances after the instant permission notice was given.

In light of the above legal principles and records, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the legal nature of the notice of permission in this case and the requirements for permission of change under

2. As to the ground of appeal No. 2, although there was no particular defect at the time of the disposition, and there was no separate legal ground to withdraw it after the disposition, the disposition agency may withdraw it by a separate administrative act which would lose its validity where there was no change in circumstances that make it unnecessary to continue its original disposition, or where there was a need for the important public interest. However, even if there was a reason such as cancellation, it would infringe upon the people's vested vested rights. Thus, the exercise of the right of cancellation, etc. shall be determined by comparing and comparing and comparing with the disadvantage suffered by the other party only when it is necessary for the important public interest to justify the infringement of the vested rights, or when it is necessary to protect the interests of a third party, and the disadvantage suffered by the other party than the necessity for the public interest due to the disposition is enormous (see Supreme Court Decision 2003Du10251, 10268, Nov. 26, 2004, etc.).

According to the reasoning of the lower judgment and the reasoning of the first instance judgment cited by the lower court, the lower court acknowledged the facts as indicated in its reasoning after comprehensively taking account of the evidence adopted by the lower court, and found the following facts. ① the Defendant’s demand for indoorization of construction waste disposal facilities and the camping site for the instant disposal ground is objectively unreasonable; ② the Plaintiff presented a plan to secure access roads to provide part of the site for the instant disposal ground; ② the Defendant did not demand additional supplementation on traffic issues; ③ the prospective site for the Plaintiff’s relocation of a workplace is geographically severed from the neighboring residential area, etc.; ③ the Plaintiff’s installation and operation of the preventive facilities, etc. presented by the Plaintiff as the prevention measures against pollution are anticipated to reduce damages caused by noise, vibration, scattering dust, etc.; ④ the Defendant’s relocation of the Plaintiff’s workplace cannot be deemed to cause damages beyond the tolerance limit under the social norms; ④ the Defendant’s burden of proof on the defect of the instant permission or the need to cancel it; and ⑤ the Plaintiff’s purchase of the Plaintiff’s investment in the instant workplace, etc., without any specific grounds, to minimize the Plaintiff’s investment in its neighboring environment and health.

In light of the above legal principles and records, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors of misapprehending the legal principles as to deviation or abuse of discretion in the cancellation or withdrawal of beneficial administrative acts.

3. 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 on the bench.

Justices Jo Hee-de

Justices Lee Sang-hoon

Justices Kim Chang-suk