[1] The meaning of "a change in the applicant's legal relationship" as a requirement for an administrative agency's rejection of a citizen's application to become an administrative disposition subject to appeal litigation

[2] The case holding that a return disposition on the application for deliberation on construction plan constitutes an administrative disposition subject to appeal

[3] Purport of Article 4(1) of the former Building Act which provides that a building committee shall be established without fail, and whether an administrative agency may reject an application for deliberation on a building plan for reasons not subject to deliberation by the building committee (negative)

[1] In order for an administrative agency to refuse to conduct an action upon a citizen’s application for active action to constitute an administrative disposition that is the subject of an appeal litigation, the application shall be an exercise of public authority or an equivalent administrative action, and the refusal shall cause any change in the applicant’s legal relationship, and the citizen shall have the right to request the action in accordance with the law or sound reasoning. The meaning of “the cause of a change in the applicant’s legal relationship” includes not only a direct change in the applicant’s substantive legal relationship, but also a significant obstacle to the applicant’s exercise of his/her rights as a substantive right holder.

[2] The case holding that a return disposition on the application for deliberation on construction plan constitutes an administrative disposition subject to appeal

[3] The purport of Article 4 (1) of the former Building Act (amended by Act No. 8219 of Jan. 3, 2007), which stipulates that a building committee shall be established without fail, is to promote fairness and expertise in administration of building permission. Thus, an administrative agency which has received an application for deliberation of building plan, upon receipt of an application for deliberation of building plan, shall refer the relevant building to the deliberation of the building committee as long as it is objectively unclear that it is objectively impossible to grant building permission. Article 5 (4) of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 18951 of Jul. 18, 2005) provides that "the matters concerning structural safety, escape, and fire fighting of a building, etc. whose total floor area used for sale and business facilities, etc. is 5,000 square meters or more, and any person who intends to apply for building permission may first apply for building permission by satisfying other requirements after undergoing the deliberation of building plan. Thus, it is not allowed to return the application for construction plan deliberation on

[1] Article 1 [General Administrative Disposition] Articles 2 and 19 of the Administrative Litigation Act / [2] Articles 1 [General Administrative Disposition], 2 and 19 of the Administrative Litigation Act, Article 4 (1) of the former Building Act (amended by Act No. 8219 of Jan. 3, 2007), Article 5 (4) 3 of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 18951 of Jul. 18, 2005) / [3] Article 4 (1) of the former Building Act (amended by Act No. 8219 of Jan. 3, 2007), Article 5 (4) 3 of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 18951 of Jul. 18, 2005)

[1] Supreme Court Decision 96Nu14036 delivered on July 10, 1998 (Gong1998Ha, 2125) Supreme Court Decision 2000Du9229 delivered on November 22, 2002 (Gong2003Sang, 225)

Lot shopping Co., Ltd. (Law Firm Rate, Attorneys So-young et al., Counsel for the plaintiff-appellant)

Changwon Market (Attorney Jeon Young-soo et al., Counsel for the plaintiff-appellant)

Busan High Court Decision 2006Nu1609 decided Dec. 15, 2006

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. Whether an act of rejecting the application for deliberation on a construction plan constitutes an administrative disposition subject to appeal litigation

The issue of whether an administrative disposition is deemed an administrative disposition cannot be determined abstract, general, and in specific cases, an administrative disposition is an act that directly affects the rights and obligations of the people as a law enforcement with regard to specific facts conducted by an administrative agency as a public authority. In light of the contents and purport of the relevant Acts and subordinate statutes and whether the act satisfies the requirements of establishment or validity as an administrative disposition to a certain extent in the subject, content, form, procedure, etc. of the relevant Acts and subordinate statutes, the actual relation between the act and disadvantage suffered by interested parties such as the other party, and the principle of administration by the rule of law and the attitude of interested parties related to the relevant act, etc.

In addition, in order for an administrative agency to refuse to conduct an action upon a citizen's application for active action to constitute an administrative disposition that is subject to appeal litigation, the application shall be an exercise of public authority or an equivalent administrative action, and the refusal shall cause any change in the applicant's legal relationship, and the citizen shall have the right to request the action in accordance with the law or sound reasoning. Here, the term "the cause of a change in the applicant's legal relationship" means not only a direct change in the applicant's legal relationship in the applicant's substantive legal relationship, but also a significant obstacle to the applicant's exercise of his/her rights as a substantive right holder (see Supreme Court Decision 200Du9229, Nov. 22, 2002, etc.).

According to the reasoning of the judgment below and the records, the plaintiff filed an application for deliberation on construction plan (hereinafter referred to as the "application of this case") with the defendant for new construction of a lot base datum (hereinafter "the building of this case") subject to deliberation by the Construction Committee under Article 5 (4) 3 of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 18951, Jul. 18, 2005; hereinafter the "former Enforcement Decree") as facilities for sale and use with a total floor area of at least 5,000 square meters. The defendant filed an application of this case for deliberation on construction plan (including the application of this case") with the defendant in the deliberation of the Gyeongnam-do Traffic Impact Deliberation Committee prior to the application of this case, on the ground that the plaintiff did not consult with the defendant about the establishment conditions of the above facilities for mobility disadvantaged persons, etc. at the center of the project area and rejected the application of this case on the ground that the plaintiff did not return the administrative appeal of this case.

As such, the disposition of this case has an appearance to the extent that it is objectively recognized as an administrative disposition, and the plaintiff is also aware of it as an administrative disposition, and Article 4 (1) of the former Building Act (amended by Act No. 8219 of Jan. 3, 2007; hereinafter "former Building Act") requires a building committee to investigate and deliberate important matters concerning the enforcement of the Building Act and municipal ordinances. In order to promote fairness and expertise in construction administration, it seems that administrative agencies must necessarily undergo deliberation by the building committee in determining whether to grant a building permit for a building prescribed by the Acts and subordinate statutes. Thus, the disposition of this case is an defective administrative act even if the plaintiff is granted a building permit for the building of this case without such construction plan deliberation. Thus, the plaintiff is placed in an unstable legal position that it is difficult for the plaintiff to obtain a legitimate building permit due to the defendant's rejection disposition, and the defendant is obliged to submit a building permit prior to such application, and it does not directly affect the plaintiff's construction permit's construction permit or building plan's construction permit's legal relation.

In the same purport, the court below's rejection of the defendant's defense on the ground that the rejection disposition of this case constitutes an administrative disposition subject to appeal litigation, and there is no error of law such as misunderstanding of legal principles as to an administrative disposition subject to appeal litigation as alleged in the ground of appeal

2. As to the legitimacy of the return disposition of this case

As seen earlier, the purport of Article 4(1) of the former Building Act stipulating that a building committee shall be established shall be to promote fairness and expertise in the administration of building permission. As such, an administrative agency that has received an application for deliberation of a building plan shall refer the relevant building to the deliberation of the building committee as long as it is objectively unclear that building permission is not possible. In addition, Article 5(4) of the former Enforcement Decree of the Building Act stipulates that “the structural safety, escape, and fire-fighting of a building, etc., whose total floor area used for sale and business facilities, etc. is not less than 5,00 square meters, shall be limited to a deliberation by the local building committee, and a person who intends to apply for a building permit may first file an application for a building permit by meeting other requirements after undergoing the construction plan deliberation procedure, and thus, it is not

However, as seen earlier, the Defendant rendered a disposition to return the instant building on the ground that the Plaintiff failed to properly implement the results of deliberation by the committee for deliberation on traffic impacts in Gyeongnam-do, but such reason does not fall under the deliberation by the construction committee, and no data can be found in the record that it is objectively apparent that the building permit of the instant building is impossible. Thus, the instant disposition to return the instant building is unlawful.

In the same purport, it is proper that the court below maintained the judgment of the first instance which accepted the claim for revocation on the ground that the rejection disposition of this case was unlawful, and there is no error of law such as violation of the rules of evidence, incomplete hearing, omission of judgment or misapprehension of legal principles as to the legal nature of the deliberation result

3. Conclusion

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.

Justices Kim Hwang-sik (Presiding Justice)