[1] Whether a landowner may file an application for the withdrawal of a building permit with the owner of the land where the owner obtained a building permit in the nature of the substitute (material) that constructs a building on the land with the owner’s written consent for land use and loses his/her right to use the relevant land due to a cause attributable to the owner prior to the commencement of the construction (affirmative), and whether the act of refusing the owner’s application is subject to an appeal litigation

[2] In a case where there was no defect at the time of an administrative disposition, and there was no separate legal basis for the withdrawal of the disposition after the disposition, but there was no need to continue the disposition, or a serious need for public interest arises, whether the agency which performed the administrative act may withdraw it by a separate administrative act which made the administrative act lose its effect (affirmative)

[1] A building permit has the nature of an object, and an administrative agency, when granting permission, shall conduct a formal examination only with regard to human elements, such as who the owner or landowner. If a building permit in the nature of an object (material) which constructs a building on the land by obtaining a written consent from the landowner and obtained a building permit in the nature of the object (material) is lost due to a cause attributable to the owner prior to the commencement of the construction, the owner of the relevant land may be deemed to have the right to use the relevant land due to the existence of the building permit and may interfere with the exercise of the ownership of the relevant land. Therefore, the act of the owner of the land to refuse

[2] Although there was no particular defect at the time of the disposition, and there was no need to continue the original disposition even if there was no separate legal ground to withdraw it after the disposition, or where there was a need for important public interest, the disposition agency may withdraw it by a separate administrative act which causes loss of its validity. However, in the case of cancelling, withdrawing, or suspending the beneficial administrative act, it would infringe upon the people's vested rights. Thus, even if there is a reason such as cancellation, the exercise of the right of cancellation, etc. needs to be protected for important public interest or a third party's interest to justify the infringement of the vested rights, and in comparison and comparison with the disadvantage suffered by the other party, it may be allowed only where the necessity of public interest, etc. is strong enough to justify the disadvantage suffered by the other party

[1] Article 11 of the Building Act, Article 2 (1) 1 of the Administrative Litigation Act / [2] Article 1 of the Administrative Litigation Act / [1]

[1] Supreme Court Decision 2010Du2296 Decided May 13, 2010 (Gong2010Sang, 1152) / [2] Supreme Court Decision 2003Du7606 Decided July 22, 2004 (Gong2004Ha, 1530) Supreme Court Decision 201Du27322 Decided March 15, 2012

Central Eppvis Co., Ltd. (Law Firm Square, Attorneys Kim Tae-tae et al., Counsel for the plaintiff-appellant)

E-Government Market

C&C Co., Ltd. (Law Firm LWz, Attorneys Jeong Young-young et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2014Nu47596 decided August 20, 2014

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

The grounds of appeal are examined.

1. A building permit is of the nature of an object and thus, an administrative agency is required to conduct a formal examination as to human factors, such as who the owner or landowner is, at the time of granting the building permit (see Supreme Court Decision 2010Du2296, May 13, 2010). Where a project owner obtained a written consent from the landowner and obtained a building permit of the nature of an object on the land that constructs a building on the land, but loses the right to use the relevant land due to a cause attributable to the project owner prior to the commencement of the construction, the owner of the land, which may interfere with the exercise of ownership due to the existence of the building permit, may file an application for the withdrawal of the building permit. Therefore, a landowner’s refusal of such application is subject to an appeal litigation.

Meanwhile, even if there was no particular defect at the time of the disposition, and there was no need to continue the original disposition even if there was no separate legal ground to withdraw it after the disposition, or where there was a need for important public interest (see Supreme Court Decision 2003Du7606, Jul. 22, 2004, etc.). However, in cases where the beneficial administrative act is cancelled or withdrawn or suspended, it would infringe on the vested people’s vested rights. Thus, the exercise of the right of cancellation, etc. requires to protect the important public interest needs or third parties’ interests to justify the infringement of the vested rights even if there were grounds such as cancellation, etc., and can be permitted only where the necessity of public interest, etc. is strong enough to justify the disadvantage that the other party would suffer (see Supreme Court Decision 2011Du27322, Mar. 15, 2012, etc.).

2. The record reveals the following facts.

A. On March 30, 2012, the Plaintiff sold the instant land and its ground buildings owned by the Plaintiff to the Intervenor joining the Defendant (hereinafter “instant sales contract”).

B. Around July 24, 2012, the Defendant Intervenor filed an application with the Defendant for a building permit to build a new apartment house on the ground, such as the instant land, along with the Plaintiff’s written consent to use the land, etc., and, upon addition, the Defendant added the Plaintiff to the owner of the building, the Plaintiff changed the Plaintiff to the “Defendant’s Intervenor’s Intervenor’s Intervenor’s Intervenor’s Intervenor’s Intervenor’s, and the Plaintiff submitted the instant written consent to use, and received the instant building permit from the Defendant on October 15, 2012.

C. On the bottom of the consent to use of the instant case, “The consent to use of the instant case is based on the instant sales contract, and thus becomes null and void due to the reversal of the said sales contract, and the employer (the supplementary intervenor to the Defendant, the Rose of Sharon) shall not assert any right related thereto for any reason.”

D. The Defendant Intervenor extended the remainder of the payment date four times, and extended the remainder of the payment date on January 31, 2013 on December 31, 2012, and if the Plaintiff is unable to pay all remainder by January 31, 2013, the Plaintiff may rescind the instant sales contract without any separate peremptory notice. In this case, the instant written consent of use becomes void immediately, and the Defendant Intervenor agreed to waive and withdraw the instant construction permission.

E. However, the Defendant’s assistant intervenor did not pay the balance even until January 31, 2013, and the Plaintiff rescinded the instant sales contract. On July 24, 2013, the Plaintiff filed an application with the Defendant for the revocation of the instant construction permit on the ground that “the instant construction permit based on the validity of the instant written consent to use was changed in circumstances no longer necessary to continue to exist.”

F. On July 25, 2013, the Defendant rendered the instant refusal disposition rejecting the instant application on the ground that “A building permit may be revoked if the owner’s application or the building falls under the provisions of Article 11(7) of the Building Act, but the decision by consultation or lawsuit among interested parties is required first.”

3. Based on the following circumstances, the lower court determined that the instant rejection disposition was unlawful on the grounds that there is no benefit in protecting the Defendant’s auxiliary intervenor and the Rose of Sharon, which would be infringed upon by the withdrawal of the instant construction permit, and that the withdrawal is reasonable

A. The Plaintiff is not able to exercise the right to use, profit from, and dispose of the instant land due to the continuation of the instant building permit.

B. The Defendant’s Intervenor and the Berne Trust failed to acquire the ownership of or the right to use the instant land as the instant sales contract was rescinded, and even up to now, they did not commence construction works in accordance with the instant building permit.

C. The Defendant Intervenor agreed to waive and withdraw the instant construction permit in the event that the instant sales contract is terminated due to the extension of five times or more of the outstanding payment date of the instant sales contract, and the extension of the final payment date of the remainder.

4. In light of the legal principles as seen earlier, the Defendant’s refusal to withdraw the instant building permit on the ground that the Plaintiff, a landowner, had no right to use the instant land in the Defendant’s assistant intervenor and the Rose of Sharon, is subject to appeal litigation. Furthermore, the Defendant’s withdrawal of the instant building permit upon the Plaintiff’s request, thereby recognizing the need to protect the Plaintiff’s interests, and the need to protect the Plaintiff’s interests is strong to justify the disadvantage of the Defendant’s assistant intervenor and the Rose of Sharon trust when comparing and comparing the disadvantages the Defendant’s assistant intervenor

Therefore, the lower court’s determination is justifiable and, contrary to what is alleged in the grounds of appeal, did not err by misapprehending the legal doctrine on the withdrawal of beneficial administrative acts, thereby failing to exhaust all necessary deliberations on the comparison and bridge of the benefits and disadvantages

5. The appeal by the Defendant Intervenor 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 on the bench.

Justices Park Poe-young (Presiding Justice)