(a) If it is impossible to recover from the window even if the illegal disposition was revoked, whether there is a benefit of revocation of such administrative disposition;

(b) The case holding that there is no interest in seeking a revocation of illegal building permit disposition for securing the separation distance;

A. Since a lawsuit seeking the cancellation of an illegal administrative disposition is a lawsuit seeking the restoration to its original state by removing an illegal state caused by the illegal disposition and protecting or remedying the rights and interests infringed or obstructed by such disposition, there is no benefit to seek the cancellation, even if such cancellation is impossible to restore it to its original state.

B. Even if the construction permit disposition is illegal because it does not keep a separation distance under Article 242(1) of the Civil Act or Article 41(4) of the Building Act, or Article 90(2) of the Enforcement Decree of the Building Act (amended by Presidential Decree No. 11740 of Aug. 16, 1985), if construction work is conducted based on the building permit and completion inspection is completed before the closing of argument in the court below, the above separation distance has already been revoked and the above disposition is revoked and the above separation distance has not been secured, and therefore there is no legal interest in the revocation of the above construction permit disposition.

Articles 19 and 12 of the Administrative Litigation Act

Supreme Court Decision 81Nu53 Decided July 28, 1981

Plaintiff

Attorney Kim Yong-hoon, Counsel for the plaintiff-appellant

Defendant’s Intervenor’s Kang-tae, Counsel for defendant’s intervenor

Seoul High Court Decision 86Gu293 delivered on December 29, 1986

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

The grounds of appeal by the Defendant and the Defendant’s Intervenor are examined.

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 the illegal disposition and protecting the rights and interests infringed or impeded by the disposition, so even if the illegal disposition is cancelled, there is no benefit to seek the cancellation if the restoration is impossible.

In light of the records, the lawsuit of this case is sought for the cancellation of the above building permit disposition on July 26, 1985 by the defendant against the defendant joining the defendant without setting a distance as provided in Article 242 (1) of the Civil Act or Article 41 (4) of the Building Act, and Article 90 (2) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 11740 of Aug. 16, 1985). Thus, the plaintiff's purpose of the lawsuit of this case is to secure a separation distance guaranteed by the above Acts and subordinate statutes. Meanwhile, according to the facts established by the court below, the above defendant joining the defendant's lawsuit of this case is to carry out the above building permit after obtaining the above building permit and completed the construction completion inspection on May 26, 1986. Thus, even if the above building permit disposition is unlawful as the plaintiff's head, it is not necessary for the plaintiff to revoke the above building permit disposition, and it is not necessary for the plaintiff to secure the above 17th of the above building permit.

Nevertheless, the court below held that the plaintiff's lawsuit of this case seeking the revocation of the construction permit disposition only on the ground that the effect of the construction permit disposition even after the completion of the construction is continued, is legitimate, and therefore, the court below erred by misapprehending the legal principles on the interest of filing a lawsuit in the administrative litigation, which affected the conclusion

Therefore, without examining the remaining grounds of appeal, we reverse the judgment of the court below and remand the case to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-dong (Presiding Justice)