Restrictions on the issuance of cancellation rights against beneficial administrative disposition

When an administrative agency cancels an effective administrative act, the administrative agency may not freely cancel it when it infringes on the rights and interests of the people, and the public interest needs to cancel it, and there is no disadvantage to the parties due to cancellation. Therefore, it is difficult to conclude that even if the plaintiff applied for permission for accommodation business after the construction of a building with the purpose and size under the construction permission, and the defendant applied for permission for accommodation business after the construction of the building, it does not constitute a threat to public order. On the other hand, the cancellation of the above business permission cannot be said to have abused its discretionary authority, since the cancellation of the permission is a huge disadvantage to the plaintiff's vested rights.

Article 4 of the Lodging Act

Plaintiff

Seoul Special Metropolitan City Mayor

The defendant's revocation of permission for accommodation business against the plaintiff on February 29, 1972 shall be revoked.

Litigation costs shall be borne by the defendant.

The same shall apply to the order.

In accordance with Article 4 of the Lodging Business Act of July 15, 1971, the fact that the Defendant granted to the Plaintiff a permit for the accommodation business (title omitted), but thereafter revoked the disposition on February 29, 1972 is no dispute between the parties.

The defendant, the building of the 3th floor of the steel spawn, the building of the Seodaemun-gu Seoul Special Metropolitan City (hereinafter omitted) newly built by the plaintiff, was illegally constructed at approximately 65.35 times the size of the building permit, which is about 27.50 times the size of 27.4 times the size of the building permit, and was an unauthorized building that had the original purpose of permission and did not obtain approval for the alteration of the purpose of use due to the business operation. However, the Seodaemun-gu Office, the competent authority for the building permit, was unlawful in conducting the inspection of the completion of construction and the registration of the house ledger. Accordingly, even if the building cannot be permitted for accommodation business, it was merely permitted to conduct the above business as above. This was an unjust permission for the illegal building, and thus, the administrative disposition was taken according to the request of the Board of Audit

However, since an effective administrative act has a defect in its establishment, the administrative act may not be freely cancelled if it infringes upon the rights or interests of the people due to the cancellation of the administrative act, even if the administrative agency which performed the administrative act itself can cancel it by itself, and the administrative agency may not freely cancel it. Since the administrative agency's cancellation is the necessity of the public interest to cancel it, it does not disadvantage or cancel it to the parties, it is necessary to make a decision on whether to cancel it by comparing and comparing the impact on the public order, etc., which is likely to affect the public order, and even if it is minor, it cannot be cancelled if it is not detrimental to the public order in practice. Thus, it is hard to conclude that the building of the newly-built lodging establishment by the plaintiff cannot be cancelled if it is more illegal than the originally permitted area and its main purpose of use is a house with the initial permitted area, and permission for change of the purpose of use was made, and it becomes improper as permission for the first illegal building, and it is difficult to conclude that it has already been subject to a disposition of cancellation on the public order or interest.

Therefore, the defendant's disposition to revoke the permission of this case's accommodation business is an illegal administrative disposition where the discretion is abused even if it was made by the performance of an objection according to the request of the Board of Audit and Inspection. Thus, the plaintiff's claim to revoke the objection is justified, and the costs of lawsuit are assessed against the losing defendant.

Judges Yong-Ank, Myun (Presiding Judge)