(영문) 제주지방법원 2019.8.14.선고 2019누1113 판결

On December 19, 2017, the Defendant’s disposition of rejection of an application for permission to change the development and use of groundwater against the Plaintiff is revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

Reasons

1. Quotation of judgment of the first instance;

The reasoning for the court’s explanation on the instant case is as stated in the column of the reasoning for the judgment of the court of first instance, and thus, the reasoning for the court’s explanation is as stated in Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

2. Additional determination

A. Determination on the main defense of this case

1) Since the effective period of permission for the development and utilization of existing groundwater, which is the subject of the instant application for permission for change, has already expired on November 24, 2017, the Defendant asserted that the instant lawsuit is unlawful as there is no legal interest in seeking revocation of the disposition of this case rejecting the said application.

2) A lawsuit seeking the revocation of an administrative disposition is filed to restore the original state to its original state by excluding any unlawful state arising from such disposition, and to protect and relieve the rights and interests infringed or interfered with such disposition. Thus, even if the revocation of such disposition is impossible, there is no benefit to seek the revocation of such disposition if reinstatement is impossible. However, even if such revocation is made impossible, it should be deemed that there is still a benefit to seek the revocation of such disposition in terms of ensuring the legality of the administrative disposition, judicial control thereof, and expansion of citizens’ rights and interests (see, e.g., Supreme Court en banc Decision 2006Du19297, Jul. 19, 2007; Supreme Court Decision 2015Du46987, May 10, 2019).

According to the health account and evidence evidence No. 2 as to the instant case, when attaching a permit for the development and utilization of groundwater as of December 21, 2015, the period of permission from November 24, 2017, which was from November 24, 2017 at the time the Plaintiff applied for the instant disposition, specific facts subject to the instant permit modification application, and the instant disposition may be recognized as being made on December 19, 2017, when the period of permission expires. However, it is reasonable to view that the Plaintiff has a legal interest in seeking the revocation of the instant disposition, comprehensively taking into account the facts acknowledged earlier, and the evidence as seen earlier, and the following facts or circumstances that can be determined by comprehensively taking account of the aforementioned facts and circumstances.

① On November 25, 1993, the Plaintiff (including ○○ Hosan Co., Ltd., Ltd. and ○○○○○ air Co., Ltd.) obtained a permit for the development and utilization of groundwater (permission number 93-4-1199) from the Defendant on November 25, 199 and obtained a permit for the extension of the period on December 19, 2017 by November 24, 2019. The permission for the extension of the period was granted on December 19, 2019. In most cases, when the extension of the period was granted, the permission number was given on the basis of the first permission number. In light of the background of the permission for the extension of the period, internal use, its character, etc., as long as the period for the extension of the period has expired, the Plaintiff seems to have benefit in seeking the cancellation of the disposition of this case.

② Since November 25, 1993, the Plaintiff obtained a permit for development and utilization of groundwater from the Defendant for a long period from November 25, 1993 to the present, it is anticipated that the Plaintiff will continue to apply for an extension of the effective period of the permit for development and utilization of groundwater in the future as well as for an amendment to the permitted volume of water intake. In such a case, the Defendant would be able to repeat the application for a permit for the change of the permitted volume of water intake due to the same reason as the instant disposition. Therefore, the instant disposition is related to the interpretation of the statutes

Therefore, the defendant's defense is without merit.

B. Determination on the assertion, such as addition of grounds for disposition

1) The defendant's assertion

The defendant argues that the disposition of this case includes the grounds for disposition that "the defendant's refusal to apply for permission to change the volume of water intake in order to manage groundwater properly," and even if not, this is added to the lawsuit of this case as a ground for disposition identical to the original ground for disposition and basic factual relations. Accordingly, the disposition of this case constitutes a legitimate disposition within the scope of discretion of the defendant as a disposition for the proper management of groundwater of this case.

2) Determination

A) First, as to whether “the Defendant’s refusal to apply for a permit to change the volume of water intake in order to properly manage the groundwater in this case’s disposition” includes the grounds for the disposition, there is insufficient evidence to acknowledge it by itself, and there is no other evidence to acknowledge it. In addition, according to the above evidence, the Defendant is not allowed to apply for a permit to change the volume of water intake in order to increase the permitted volume of water intake in accordance with Article 312(2) of the former Special Act on Jeju in accordance with the transitional measures stipulated in Article 33 of the Addenda of the Special Act on Jeju (21 February 21, 2006) in the case of the Plaintiff’s ground for the disposition in this case (where a person who is deemed to have obtained a permit pursuant to Article 312(1) of the former Special Act on Jeju in accordance with the transitional measures stipulated in Article 33 of the former Special Act, and who manufactures and sells drinking water, applied for a permit to change the volume of water intake as the grounds for the disposition in this case’s case.

B) Next, we examine the additional arguments on the grounds for 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 only seek 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 reason for disposition on the ground of separate facts that are not recognized as identical with the basic facts. The existence of the basic facts in this context is determined on the basis of whether the social factual relations, which are the basis of the disposition, are identical in the basic point of view with the specific facts before the legal evaluation of the ground for disposition (see, e.g., Supreme Court Decisions 2005Du364, Jun. 30, 2006; 2005Du18565, Mar. 9, 199).

With respect to this case, the defendant's disposition of this case merely provides that the plaintiff is deemed to have obtained permission in accordance with the transitional measure under Article 33 of the Addenda of the Jeju Special Act (amended by February 21, 2006) and that the application for permission to change the amount of permission to collect drinking water at the time when the disposition of this case is to be deemed to have been made and sold. Thus, the defendant's exercise of discretionary power for the proper management of ground water in the disposition of this case only for the defendant's disposition of this case cannot be deemed to have the same factual basis as that of the above disposition of this case, since the defendant's exercise of discretionary power for the proper management of ground for the disposition of this case only for the disposition of this case cannot be said to have the same factual basis as that of the disposition of this case. Thus, the addition of the disposition

Therefore, this part of the defendant's assertion is without merit to further examine whether the defendant's ground for disposition that the defendant intends to add belongs to the discretion of the defendant and is legitimate.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.