[1] Where the relevant Act and subordinate statutes were amended and enforced before a disposition was made after the authorization or permission was granted, whether the disposition was made in accordance with the amended Act and subordinate statutes and permission standards (affirmative)

[2] In a case where the law different legislative purpose, etc. prescribes the requirements for certain acts, whether permission should be obtained in accordance with the provisions of each law for such acts (affirmative)

[3] Whether the external binding force of Article 5-8 (1) 1 and (4) of the Management Regulations on the Criteria for Disposition Plan of Gas Stations is binding (negative)

[4] The case holding that the non-permission disposition on the application for the permission of the gas station in question, based on the permission standard as stipulated in the notice of Ansan City was lawful

[1] In principle, an administrative act shall be conducted based on the Acts and subordinate statutes in force at the time of the disposition, and when the relevant Acts and subordinate statutes were amended and enforced before the disposition was made after the approval and permission, the determination of whether to grant permission under the Acts and subordinate statutes at the time of the application for permission shall not be made unless there is a transitional provision to the effect that the previous provisions are followed. Even if the competent administrative agency accepts the application for permission and delays the disposition without justifiable grounds, the non-permission disposition is legitimate in accordance with the amended Acts and subordinate statutes and the permission standards, unless

[2] If the laws different from the legislative purpose stipulate the requirements for certain acts, a certain act shall be subject to permission in accordance with the provisions of each law, unless it is clear that the law is applied exclusively in preference to other Acts. In such a case, among them, the provisions concerning permission under other Acts and subordinate statutes are invoked in the relevant laws and subordinate statutes concerning one permission, or the act is absolutely prohibited by other Acts and subordinate statutes and it is obvious that it is objectively impossible to do so, it may be decided in consideration of such requirements.

[3] Each provision of Article 5-8 (1) 1 and (4) of the Regulations on the Criteria for Disposition Plan of Gas Stations (amended on November 11, 1995) provides that the Minister of Construction and Transportation, a superior agency, shall determine the method of exercising its discretionary power to secure a uniform and equal exercise of discretionary power with respect to the head of a Si/Gun, which is a subordinate agency entrusted with the authority under the Acts and subordinate statutes, and shall not be merely an internal business rules of an administrative agency, but also have external binding force. Thus, the issue of illegality does not arise on the ground that the non-permission disposition violates the above regulations, and the legality of the disposition shall not be determined by whether it conforms to the above regulations, but shall be determined individually and specifically depending on whether it conforms to the provisions and intent of the relevant Acts and subordinate statutes.

[4] The case holding that the non-permission disposition on the application for the permission of the gas station in question, which is based on the permission standard stipulated in the notice of Ansan City, is lawful

[1] Article 1 of the Administrative Litigation Act / [general Administrative Disposition] Article 21 (3) of the Urban Planning Act, Article 20 of the Enforcement Decree of the Urban Planning Act, Article 7 (1) 6 (q) of the Enforcement Rule of the Urban Planning Act, Article 8 of the Enforcement Rule of the Petroleum Business Act / [2] Article 1 of the Administrative Litigation Act / [3] Article 5-8 (1) 1 and (4) of the Administrative Litigation Act / [4] Article 21 (1) of the Urban Planning Act

[1] Supreme Court Decision 94Nu10887 delivered on November 21, 1995 (Gong1996Sang, 82), Supreme Court Decision 95Nu10877 delivered on August 20, 1996 (Gong1996Ha, 2874) / [2] Supreme Court Decision 94Nu3216 delivered on January 12, 1995 (Gong195Sang, 914 delivered on June 28, 1996)

Plaintiff

Ansan-si

Seoul High Court Decision 96Gu21746 delivered on November 20, 1996

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

The supplementary part of the grounds of appeal is examined together with the statement in the grounds of appeal.

1. On the first ground for appeal

A. An administrative act shall, in principle, be conducted according to the Acts and subordinate statutes in force at the time of the disposition, and when the relevant Acts and subordinate statutes were amended and enforced before the disposition was made after the approval and permission, the determination of permission pursuant to the Acts and subordinate statutes at the time of the application for permission shall not be made unless there is a transitional provision to the effect that the previous provisions are followed. Even if the competent administrative agency accepts the application for permission and delays the disposition without justifiable grounds, the non-permission disposition shall not be made unlawful in accordance with the amended Acts and subordinate statutes and the permission standards unless there is a change in the Acts and subordinate statutes and the permission standards (see, e.g., Supreme Court Decisions 94Nu1087, Nov. 21, 1995; 95Nu10877, Aug. 20, 1996)

According to the reasoning of the judgment below, the court below acknowledged that on November 15, 1995, the defendant received an application for permission for the gas station sales business (location omitted) from the plaintiff on the location of Ansan-si (hereinafter "the land in this case") which is located in the development restriction zone, and on January 11, 1996, the above application was lawful, since the distance between gas stations under the Management Regulations of the Development Restriction Zone (No. 126 of the amended Ministry of Construction and Transportation Directive No. 126 of November 11, 1995; hereinafter "Management Regulations") should be at least 2 km of the distance between gas stations. The non-permission disposition was made on the ground that the same oil station had already been permitted within the standard distance, and the previous provision of Article 20 of the Enforcement Decree of the Act on the Construction and Transportation No. 126 of the Act on March 15, 1994 was applied to the road section where the land in this case had already been located, and since the amendment of the above Management Regulations on the Change of the Act No. 21216.

According to the records, the court below's decision that the defendant's disposition of non-permission in this case was rendered 10 days of the processing period of the application for permission for petroleum retail business under Article 8 (Attached Form 11) of the Enforcement Rule of the Petroleum Business Act, which is the regulation of decoration, was received excessively by concentrating the same kind of application for permission in a short period due to the revision of the relevant laws and regulations, and it is known that the consultation with the relevant departments and deliberation by the guidelines for urban design were required, etc., without any justifiable reasons, it cannot be deemed that the defendant delayed the disposal. Accordingly, the court below's decision that the criteria for permission in the notice of Ansan City at the time of the disposition regarding the application for permission in this case are proper, and there is no error of law as to the applicable laws and regulations and the standards for permission, etc.

B. The work planning guidelines (Evidence A No. 10) of the defendant's preparation alleged in the grounds of appeal are merely internal documents that were provisionally made within the administrative agency before the non-permission disposition of this case was reached, and only the statement in the guidelines alone cannot be an obstacle in applying the notice of prompt notice at the time of the disposition. The argument in the grounds of appeal as to this point is without merit.

2. On the second ground for appeal

A. If the laws different from the legislative purpose stipulate the requirements for certain acts, a certain Act shall apply exclusively in preference to other Acts and subordinate statutes, and in such a case, permission shall be granted in accordance with the provisions of each Act, unless it is clear that the Act applies exclusively in preference to other Acts and subordinate statutes. In such a case, among them, where the provisions for permission under other Acts and subordinate statutes concerning one permission are invoked, or where it is absolutely prohibited by other Acts and subordinate statutes, and it is obvious that such act is objectively impossible, it may be decided in consideration of such requirements (see, e.g., Supreme Court Decisions 94Nu3216, Jan. 12, 1995; 96Nu3036, Jun. 28, 1996).

However, Article 12(1) of the former Petroleum Business Act (amended on December 29, 1995 and enforced from January 1, 1997; hereinafter the same), Article 9(1) of the Enforcement Decree of the same Act, and Article 4 of the Gyeonggi-do Public Notice (amended on November 9, 195 and enforced from November 15, 195) of the Enforcement Decree of the same Act (amended on November 15, 1995) provides that the installation of gas stations shall not be in violation of the relevant Acts and subordinate statutes, such as the Urban Planning Act, etc. As such, the defendant may examine whether to grant the permission for the permission for the instant petroleum retail business (oil stations) based on the Petroleum Business Act, the Enforcement Decree of the same Act, the Enforcement Rule of the same Act, and the plan for the placement of gas stations based thereon.

In addition, each provision of Article 5-8 (1) 1 and (4) of the Management Regulations (amended on November 11, 1995) concerning the criteria for the allocation plan of gas stations (amended on November 11, 1995) provides that the Minister of Construction and Transportation, a superior agency, shall determine the method of exercising its discretionary power to secure a uniform and equal exercise of discretionary power with respect to the head of a Si/Gun, who is a subordinate agency entrusted with the authority under the laws and regulations, and is merely merely an internal business rules of an administrative agency, but not an external binding force. Thus, the issue of illegality does not arise on the ground that the non-permission disposition in this case violates the above regulations, and the legality of the disposition shall not be determined by whether it conforms to the above regulations, but shall be determined individually and specifically depending on whether it conforms

According to the above legal principles, the judgment of the court below that the non-permission disposition in this case is legitimate, unless there are any special circumstances, since it conforms to the provisions on the placement plan of the externally binding notice, shall be justified, and there is no error of law by misapprehending the legal principles on directives and permission standards.

B. As asserted in the grounds of appeal, the management regulations are merely administrative rules and do not externally binding, and thus, it does not go through the procedures such as consultation with the relevant agencies as provided in Article 7 of the Framework Act on Administrative Regulation and Civil Petitions, and even if it did not comply with the provisions concerning the publication and the grace period of the major contents under Article 6 (2) and (3) of the Enforcement Decree of the same Act, such reasons alone do not affect the above conclusion. The argument in the grounds of appeal on this point is without merit.

3. On the third ground for appeal

In light of the purport of Article 21(1) of the Urban Planning Act, in addition to the designation purpose of a development restriction zone as stipulated in Article 21(1) of the same Act, the amended management regulations or the regulations on the placement plan of gas stations in the notice of Ansan City are legitimate unless there are special circumstances, barring special circumstances, barring the provisions on the placement plan or the regulations on the placement plan of gas stations in the notice of Ansan City, which are amended in accordance with the distance standards stipulated in the management regulations, are legitimate, unless the land of this case meets the conditions, etc. of the placement plan stipulated in the notice of Ansan City Planning Act, and the permission of this case is legitimate, barring special circumstances, unless the provisions on the placement plan or the regulations on the placement plan are asserted by the plaintiff alone, and the permission of this case cannot be deemed unlawful.

In the same purport, the judgment of the court below that the non-permission disposition of this case is lawful is justified, and there is no error in the misapprehension of legal principles as to permission for petroleum retail business within a development restriction zone as alleged in the grounds of appeal. The ground of appeal on this point is without merit.

4. Therefore, the appeal shall be dismissed and all costs of appeal shall be assessed against the plaintiff who has lost. It is so decided as per Disposition by the assent of all participating Justices.

Justices Jeong Jong-ho (Presiding Justice)