[1] In a case where an administrative agency made a disposition by means of a document but the content of the disposition is unclear by itself, whether the content of the disposition can be interpreted differently from the language of the disposition, taking into account the background of the disposition and the attitude of the other party after the disposition (affirmative)

[2] In a case where a person who obtained permission for conversion of a mountainous district applied for approval of restoration design for the expiration of the period for conversion of a mountainous district, but an administrative agency made a non-approval disposition on the ground that the purpose of

[3] Whether a determination can be made even if the parties did not assert if the records appear in the administrative litigation (affirmative)

[1] When an administrative agency takes a disposition in accordance with Article 24(1) of the Administrative Procedures Act, it shall ensure the clarity of the content of the disposition and prevent dispute over the existence or content of the disposition. In light of the purport of the provisions of the Administrative Procedures Act, in principle, if the administrative agency takes a disposition in writing, it shall be determined in accordance with the language and text of the written disposition. However, if there are special circumstances, such as whether the administrative agency made a disposition in writing is unclear, the content of the disposition may be interpreted differently from the language and text of the written disposition, taking into account other circumstances such as the circumstances after the disposition or the attitude of the other party after the disposition.

[2] In a case where a person who obtained permission for conversion of a mountainous district applied for approval of restoration design before the expiration of the period of conversion of a mountainous district, but the administrative agency made a non-approval of the plan on the ground that the purpose of conversion of a mountainous district has not been completed, the case holding that the non-approval disposition was unlawful on the ground that the application for approval of restoration design for the fulfillment of the duty was not completed, since the person who obtained permission for conversion of a mountainous district was not completed even if the period of conversion of a mountainous district expired under Articles 39(1)

[3] If the records appear in the administrative litigation, it may be determined even if the parties did not assert any reasonable doubt as to the legality of the disposition, and it is not permissible to grant a judgment which lacks concrete validity on the grounds that the court failed to make a statement on specific facts or ex officio, even if based on the litigation materials submitted by the parties, even though the court was able to have a reasonable doubt as to the legality of disposition, because it is contrary to the provisions of Article 26 of the Administrative Litigation Act and the peculiarity

[1] Article 24 (1) of the Administrative Procedures Act / [2] Articles 39 (1) and 40 (1) of the Management of Mountainous Districts Act / [3] Article 26 of the Administrative Litigation Act

[1] Supreme Court Decision 2003Du469 Decided July 28, 2005 (Gong2005Ha, 1433) / [3] Supreme Court Decision 2006Du7430 Decided September 22, 2006

Plaintiff 1 and two others (Attorney Han-sik, Counsel for the plaintiff-appellant)

Magyeong-gun

Seoul High Court Decision 2009Nu1121 decided September 23, 2009

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

1. The grounds of appeal are examined.

Article 24(1) of the Administrative Procedures Act provides that when an administrative agency takes a disposition, it shall be made in writing, except as otherwise provided in other Acts and subordinate statutes, to ensure the clarity of the content of the disposition and to prevent dispute over the existence or content of the disposition. In light of the purport of the provisions of the Administrative Procedures Act, in principle, if the administrative agency takes a disposition through a document, it shall be determined which disposition is in accordance with the language and text of the written disposition. However, if there are special circumstances, such as where the administrative agency conducts a disposition by reason of a document, it may be interpreted differently from the language and text of the written disposition, taking into account other circumstances such as the background of the disposition or the attitude of the other party after the disposition, etc. (see Supreme Court Decision 2003Du469,

In the following circumstances revealed by the reasoning of the judgment below and the record, the purpose of the permission is to convert the mountainous district of this case for the purpose of conversion of this case for the plaintiffs, namely, the creation of warehouse site, but the conditions of permission stated in the permission can be revoked if the "construction of a building", which is the object of conversion of this case, is not performed. The notice of the issuance of the permission, is stated as "ware" and it is not clear whether the purpose of the permission is "construction of warehouse site" or "construction of warehouse" of the conversion of this case. Meanwhile, the plaintiffs included a project plan for the construction and use of warehouse in the plan submitted at the defendant's request for supplement at the time of the application for the permission of this case for conversion of this case for the extension of the period of conversion of the mountainous district of this case for the purpose of conversion of this case, and the defendant submitted a project plan to complete the construction of warehouse within the period of conversion of this case for the purpose of the permission of conversion of this case for reasons of lack of construction. In light of the legal principles as to the permission of conversion of this case, the court below did not err in its determination.

In addition, in the case of permission for conversion of a mountainous district whose purpose business is to construct a warehouse, it is necessary to prevent harm, damage, or unlawful development of natural landscape that may arise from leaving the site alone or using it for other purposes without constructing a warehouse within the period of conversion. In light of the relevant provisions of the Mountainous Districts Management Act, if the defendant grants permission for conversion of a mountainous district of this case, and if the plaintiffs fail to perform warehouse construction even after completing the creation of warehouse site, it cannot be deemed unlawful because it deviates from the limit of the father or abused the father. The allegation in the grounds of appeal as to this is without merit.

2. It shall be deemed ex officio.

According to the facts duly admitted by the court below, the plaintiffs filed an application for approval of restoration design to the defendant who had expired the period of conversion of the mountainous district of this case, and the defendant did not approve the application on the ground that the purpose of conversion was not completed. According to Articles 39(1) and 40(1) of the Mountainous Districts Management Act, the person who obtained permission to convert mountainous district under Article 14 of the Mountainous Districts Management Act shall restore mountainous district upon obtaining approval of restoration design from the competent authority when the purpose of conversion of mountainous district is completed or the period of conversion expires. Thus, even if the period of conversion of mountainous district of this case expired, the plaintiffs are obliged to recover mountainous district under the above provisions even if the purpose of conversion of this case was not completed, and therefore, the defendant's disposition of this case which was not approved on the ground that the plaintiffs' application for approval of restoration design for the fulfillment of the duty was not completed (see Supreme Court Decision 2005Du16949, May 31, 20

In addition, even if the conditions of permission are added to the permission for the conversion of this case, if the construction of warehouse, which is the target project, is not performed, the permission for the conversion of this case may be revoked. As seen earlier, as long as the obligation to restore the mountainous district arises to the plaintiffs only on the expiration of the period of conversion, the defendant shall not approve the plaintiffs' application for the approval for the restoration design to urge the implementation of the above conditions of permission, i.e., the completion of the target project, and even if the defendant can revoke

Nevertheless, the lower court acknowledged the legality of the instant disposition on the ground that the Defendant’s application for the approval of the restoration design could be denied in the purport of demanding the implementation of the said condition prior to the revocation of the instant permission on the grounds of the violation of the said condition of permission, as well as on the grounds that the instant permission was not completed.

On the other hand, if records appear in the administrative litigation, it may be determined even if the parties did not assert any reasonable doubt as to the legality of the disposition, and if the court did not examine or determine ex officio any specific fact even though the litigation materials submitted by the parties were able to contain a reasonable doubt as to the legality of the disposition, it is not permissible to grant a judgment which lacks concrete validity because it violates the provision of Article 26 of the Administrative Litigation Act and the special nature of administrative litigation (see Supreme Court Decision 2006Du7430, Sept. 22, 2006). Therefore, the court below erred by failing to review and determine the facts that the plaintiffs applied for approval of the restoration design at the expiration of the period of conversion as mentioned in the records while recognizing the fact that the plaintiffs applied for approval of the restoration design at the expiration of the period of conversion, and failing to exhaust all necessary ex officio deliberation to deem the disposition lawful, thereby affecting the conclusion of the judgment.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Nung-hwan (Presiding Justice)