[1] The criteria for distinguishing the grounds for revocation and withdrawal of the administrative act

[2] Criteria for determining the identity of basic factual relations, which is a requirement for adding or changing grounds for disposition in an appeal litigation seeking the revocation of an administrative disposition

[1] Article 1 of the Administrative Litigation Act / [1] Article 1 of the Administrative Litigation Act / [2] Article 27 of the Administrative Litigation Act

[1] Supreme Court Decision 2003Da6422 Decided May 30, 2003 (Gong2003Ha, 1432), Supreme Court Decision 2003Da37969 Decided May 11, 2006 (Gong2006Sang, 105) / [2] Supreme Court Decision 2005Du10446 Decided October 13, 2006 (Gong2009Du15586 Decided November 26, 2009)

[Defendant-Appellee] Plaintiff 1 and 1 others

Seopo City (Attorney Seopo-hoon, Counsel for the defendant-appellant)

Gwangju High Court ( Jeju) Decision 2011Nu275 decided May 2, 2012

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

The grounds of appeal are examined.

1. The summary of the judgment below is as follows.

(1) Comprehensively taking into account the evidence adopted by the lower court: (1) the Defendant changed the existing Seogpo City Urban Management Planning (urban Planning Facilities: “○○○○ Green Park”) on February 10, 201, located in Seogpo-dong, Seopo-si, and publicly announced the topographic map; and (2) on June 3, 2010, the Plaintiff issued an application to revoke the designation of the Plaintiff under Article 86 of the former National Land Planning and Utilization Act (amended by Act No. 9982, Jan. 27, 2010; hereinafter “National Land Planning Act”) on the instant land located in the ○○○ Park Development Project Zone; and (3) on the ground that the designation of the instant urban park is likely to damage the Plaintiff or be subject to the original designation of the project implementer under Article 29 of the Special Act on the Construction and Utilization of Urban Parks, which is located in Seopo-si, Seopo-si; and (4) on the ground that the Defendant may, in principle, present its opinion on the development permit under Article 29 of the Act.

(2) Furthermore, Article 292 of the Jeju Special Act is merely a direct basis for the instant disposition, and according to the allegations by the parties, etc. revealed in the proceedings of pleadings, the instant disposition is summarized as follows: “Where continuous implementation of an urban planning facility project is deemed likely to substantially harm the public interest due to changes in circumstances” under Article 133(1)22 of the National Land Planning and Utilization Act or “where there is any change in circumstances, or there is a need for significant public interest,” which is the reason for the withdrawal of the administrative disposition (hereinafter “the ground for disposition 1”), and in the proceedings of pleadings, the lower court determined that the instant disposition was made to the effect that “the instant disposition was unlawful based on the erroneous review opinions with the Defendant’s urban construction civil petition, and thus, it is difficult to view that there was a new ground for the instant disposition to acknowledge that there was a new ground for disposition, in principle, it is difficult to view that there was a new ground for revocation of the Plaintiff’s opinion on the ground that there was no justifiable ground for the instant disposition as stated in its reasoning and circumstances.

2. However, we cannot accept such a determination by the lower court.

(1) The revocation of an administrative act is a separate administrative disposition extinguishing the validity of an administrative act retroactively on the ground of an unlawful or unreasonable defect. The withdrawal of an administrative act is an administrative disposition extinguishing the whole or part of the validity of an administrative act ex post facto, which fully became effective upon meeting the lawful requirements. Therefore, the grounds for revocation of an administrative act refers to a defect that existed at the time of the establishment of the administrative act, and the grounds for withdrawal refers to a new occurrence after the administrative act was completed, and it refers to a cause that cannot continue the validity of the administrative act (see Supreme Court Decisions 2003Da6422, May 30, 2003; 2003Da37969, May 11, 2006).

Meanwhile, in an appeal litigation seeking the revocation of an administrative disposition, a disposition agency may add or alter other grounds to the extent that the grounds for the initial disposition are deemed identical to the basic facts. The existence of the factual identity of the basic facts here is determined based on whether the grounds for disposition are identical in basic social facts in terms of the specific facts prior to the legal evaluation (see Supreme Court Decision 2009Du15586, Nov. 26, 2009).

(2) The main text of Article 292(3) of the Jeju Special Act provides that construction of buildings, installation of structures and other facilities, alteration of the form and quality of land, construction of roads, etc. in violation of the purpose of designation of an absolute conservation zone shall not be permitted. Article 292(3)5 of the same Act provides that “other acts prescribed by Provincial Ordinance to the extent that they do not damage or alter the original form of natural resources” may be permitted to do such acts. In addition, Article 6 subparag. 7 of the instant Ordinance provides that “the implementation of a park project according to a park building plan pursuant to Article 16 of the Act on Urban Parks, Greenbelts, etc., as park facilities pursuant to Article 2 of the same Act, which are park facilities within an absolute conservation zone pursuant to Article 16 of the same Act.”

In addition, according to the records, the defendant alleged that the first instance court and the lower court made the instant disposition with respect to the grounds for the instant disposition: (i) it is likely that the original form of natural resources might be severely damaged due to the flat work on the project area of the instant land among the instant land, tree felling work, etc.; (ii) the plaintiff did not have obtained permission from the Do Governor under the proviso of Article 292(3) of the Special Act on Jeju; and (iii) the designation of an individual who operates resting restaurants without imposing any condition under Article 8(3) of the National Land Planning and Utilization Act is preferential; and (iv) the instant disposition was asserted to the effect that the instant disposition was made because it is necessary for the significant public interest of the cost of management of urban parks as a result of public interest. Furthermore, even if the defendant made a statement in the preparatory document on April 5, 2012, which was submitted by the lower court in accordance with the order to prepare the name of the seat, and thus, it does not require the revocation of the original form of natural resources or ex officio revocation of the instant disposition.

In light of the above circumstances, it is reasonable to view that the grounds for the Defendant’s disposition based on the instant disposition are illegal defects that the Defendant mistakenly designated the Plaintiff as the project implementer without meeting the requirements prescribed in the proviso of Article 292(3)5 of the Jeju Special Act, and that the designation of the Plaintiff as the project implementer was unfair defects in the instant disposition for the designation of the project implementer. Such grounds are all defects that existed at the time of the instant disposition for the designation of the project implementer. Accordingly, according to the above legal principles, the grounds for the Defendant’s assertion as to whether the instant disposition satisfies the requirements under the proviso of Article 292(3)5 of the Jeju Special Act during the pleading process of the instant pleading can be deemed to constitute grounds for revocation of the instant disposition. Furthermore, it appears that the grounds for the Defendant’s assertion as to whether the instant disposition satisfies the requirements under the proviso of Article 292(3)5 of the former Enforcement Decree of the National Land Planning and Utilization Act or within the scope recognized identity of the basic factual basis. Meanwhile, the former Enforcement Decree of the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”).

Therefore, the court below should have reviewed whether there is any unlawful or unreasonable defect as alleged by the defendant in the disposition designating the project operator of this case, namely, whether the original form of the land of this case, which is an absolute conservation area, has been damaged or modified due to changes in the form and quality of 700 square meters, which is a resting restaurant business area, construction of a resting restaurant building, etc., whether the original form of the land of this case has been damaged or modified, whether a copy of the document proving the Do governor's permission under Article 292 (3) proviso 5 of the Enforcement Decree of the National Land Planning Act has been required, and if required, whether the copy of the document has been attached to the plaintiff's written application for designation of the project operator, and should have judged the validity of the disposition of this case by comparing the public interest needs to revoke the disposition for the designation of the project operator of this case

(3) Nevertheless, the lower court accepted the Plaintiff’s claim seeking revocation of the instant disposition solely on the grounds stated in its reasoning, which was readily concluded that the Defendant’s ground for the instant disposition was the grounds for revocation of administrative act and that it was a ground for revocation of the instant disposition, and that there was an addition of the grounds for disposition No. 2, which is not identical with the factual basis. In so doing, the lower court erred by misapprehending the legal doctrine on the grounds for revocation and withdrawal of

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)