[1] Whether there is a benefit to seek revocation of an illegal building permit where it is impossible to reinstate the building permit even if it is revoked (negative)

[2] In a case where the owner of a neighboring house suffers damage during the construction process, whether the victim has a legal interest in seeking revocation of the pre-use inspection disposition for the new building (negative)

[3] Whether a correction or modification of the purport of the claim is permitted in the final appeal (negative)

[1] A lawsuit seeking the cancellation of an illegal administrative disposition is a lawsuit seeking the restoration to its original state by removing the illegal state caused by the illegal disposition, and protecting or remedying the rights and interests infringed or interfered with the disposition. Thus, even if the illegal disposition is revoked, there is no benefit to seek the cancellation if it is impossible

[2] A disposition for the use inspection of a building is merely a legal effect that enables a person who has obtained permission to use or benefit from a building constructed by verifying whether the building constructed with a building permit is appropriate for the administrative purpose of the building, and issuing a certificate of use inspection. In a case where a building constructed infringes on the rights of the owner of a neighboring house, the disposition for the use inspection does not justify such infringement. In addition, even if the owner of a neighboring house suffered damage to his/her own house in the process of constructing the building, such damage can be recovered in monetary compensation. Infringement of living environment, such as infringement of the right to sunshine, can be restored or protected by removal of all or part of the building. Even if a disposition for the use inspection of the building is revoked, the owner is merely unable to use the building lawfully and return to the pre-use inspection, and thus, the owner is determined by a reasonable judgment of the administrative agency. Thus, even if the building fails to maintain this distance and the owner of a neighboring house was damaged in the process of construction, it cannot be deemed that the owner of the adjacent building has legal interest in the use inspection.

[3] The court of final appeal that is a legal judge is not allowed to correct or modify the purport of the claim.

[1] Article 12 of the Administrative Litigation Act / [2] Article 12 of the Administrative Litigation Act, Article 18 of the Building Act / [3] Article 8 of the Administrative Litigation Act, Article 235 of the Civil Procedure Act

[1] [2] Supreme Court Decision 87Nu98 delivered on May 12, 198 (Gong1987, 1009) Supreme Court Decision 91Nu131 delivered on April 24, 1992 (Gong1992, 1738) Supreme Court Decision 93Nu20481 delivered on January 14, 1994 (Gong1994Sang, 738) / [1] Supreme Court Decision 95Nu4568 delivered on July 11, 1995 (Gong195Ha, 2814 delivered on February 9, 196) / [2] Supreme Court Decision 95Nu14978 delivered on September 199 (Gong196, 1978) / [2] Supreme Court Decision 90Nu39899 delivered on September 19, 193; 199Nu197989 decided Feb. 9, 1997

Kim Yong-han

Head of Seo-gu Daejeon Metropolitan City (Attorney Kim-sik, Counsel for the defendant-appellant)

Park Ho-ho et al. and one other

Daejeon High Court Decision 95Gu2195 delivered on May 17, 1996

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

1. We examine the Plaintiff’s grounds of appeal.

A. As to the first ground for appeal

A lawsuit seeking the cancellation of an illegal administrative disposition is a lawsuit seeking the restoration to the original state by excluding the state of illegality caused by an illegal disposition, and protecting or remedying the rights and interests infringed or interfered with such disposition, so there is no benefit to seek the cancellation if the cancellation of the illegal disposition is impossible even if it is revoked (see Supreme Court Decision 91Nu1131, Apr. 24, 1992). Thus, if the construction work had been completed based on the construction permit disposition of this case, as legally determined by the court below, as alleged by the plaintiff, on the ground that the construction permit disposition of this case violates the limitation of separation distance under Article 53 of the Building Act, Article 86 subparagraph 1 of the Enforcement Decree of the Building Act, and Article 9 (1) 3 of the Daejeon Metropolitan City Building Ordinance, even if it is unlawful, the plaintiff has no interest to seek the cancellation of the construction permit disposition of this case.

In addition, a disposition of usage inspection of a building (construction) is merely a legal effect that enables a person who has obtained permission to use or benefit from a building constructed by confirming whether the building is appropriate for the purposes of construction administration and issuing a certificate of usage inspection according to the matters of building permission. If a building constructed infringes on the rights of the owner of a neighboring house, the disposition of usage inspection does not justify such infringement, and even if the owner of a neighboring house suffered damage to his/her own house in the process of constructing the building, such damage can be recovered in monetary compensation. Infringement of living environment, such as infringement of right to sunshine, can be restored or protected by removal of the whole or part of the building. Even if a disposition of usage inspection of the building was revoked, the owner is merely unable to use the building lawfully and return to the pre-use inspection, and thus, the owner is determined by a reasonable judgment of the administrative agency, and thus, it cannot be deemed that there is legal interest in the aforementioned disposition of usage inspection as the owner of the neighboring house (see Supreme Court Decision 93Nu1983, Apr. 19, 1998).

Therefore, as alleged by the Plaintiff, even though the building constructed by the instant construction permit disposition for the Intervenor’s Intervenor’s Gambling and the funeral machine violated the Plaintiff’s right to enjoy sunshine, which is the owner of the neighboring house, due to the construction in violation of the restriction on the distance above, the Plaintiff does not have any interest in seeking revocation of the instant usage inspection disposition for the said new building. The lower court’s above purport is justifiable, and the lower court’s judgment did not have any error like the theory of lawsuit, and there

B. Regarding ground of appeal No. 2

The plaintiff is seeking the imposition of a non-performance penalty by expanding the purport of the claim to the court of final appeal, but the court of final appeal, which is a legal trial, is not allowed to correct or modify the purport of the claim. Therefore, all arguments

2. Therefore, the appeal shall be dismissed and all costs of appeal shall be assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Shin Sung-sung (Presiding Justice)