Seoul Special Metropolitan City (Law Firm Boman International Law, Attorneys Cheong-tae et al., Counsel for the plaintiff-appellant)

Yangyang-gun (Attorney Han-hee, Counsel for defendant-appellant)

April 17, 2012

1. On August 23, 2011, the Defendant’s revocation of consultation on construction and revocation of the application for postponement of construction works against the Plaintiff, respectively, shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. Circumstances of the instant consultation and disposition

(1) From around 1994, the Plaintiff was organized by the Association of Duburi Volunteer Service (hereinafter “the Association”) and supported the “Tropic Camp for the disabled and their families with no disabilities” by providing accommodation facilities, such as tents, so that the disabled and their families may enjoy the bath at the bathing beach in the East Coast of Gangwon-do. From January 2009, the Plaintiff started work to build recreational facilities for the disabled and their families in full scale, and was paid 2.2 billion won from the Minister of Health and Welfare in relation to the construction of the above building pursuant to the Act on the Budget and Management of the Gu Subsidies (amended by the Act on the Subsidy Management, etc.) on May 25, 2009.

(2) On September 28, 2009, the Plaintiff purchased, under the name of the Plaintiff, the Gangseoyang-gun ( Address omitted) and the size of 6879.3 square meters (hereinafter “instant land”) located in the park collective facility district in a natural park (Seoul Metropolitan Park) as prescribed by Article 18(1)5 of the former Natural Parks Act (wholly amended by Act No. 1000, Feb. 4, 2010; hereinafter the same) for the said building project, and completed the registration of ownership transfer in the name of the Plaintiff.

(3) On June 16, 2010, the Plaintiff, a park management authority, filed an application with the Defendant for consultation on construction and permission to implement park projects pursuant to Article 20 of the former Natural Parks Act, with the following content: the name of the building, “Seoul Chabuine,” “building area,” “1,723.24 square meters,” “the total floor area,” “main purpose,” “ lodging facilities (inn),” “number,” “number of stories,” “one building number,” and “one building number,” on the ground level,” “one building number” (hereinafter “instant building”) under Article 29 of the Building Act. However, the Plaintiff filed an application for new construction of the Marine Rehabilitation Center for the purpose of a park project pursuant to the provisions of Article 20 of the former Natural Parks Act.

(4) On June 17, 2010, the Defendant requested consultation with the relevant departments. The Defendant’s culture and tourism demanded that “as the contents of the application for building permit are inconsistent with those of the application for permission for implementation of a park project and the business plan (marine rehabilitation center) under Article 20 of the former Natural Parks Act, it shall be re-verification and revision of the application.”

(5) On June 23, 2010, the Plaintiff supplemented the Defendant’s application for permission for implementation of a park project and the purpose of the project plan as “new construction of accommodation facilities”. The Defendant issued a disposition of consultation on construction on August 29, 201 of the same year (hereinafter “instant consultation disposition”) and a disposition of consultation on implementation of a park project pursuant to Articles 20(1) and 71 of the former Natural Parks Act, following consultation with the Defendant’s culture and tourism on July 29 of the same year.

(6) On the other hand, on February 15, 201, the Plaintiff applied for a change of the construction scale of the instant building from 1,860 square meters to 1,929.72 square meters due to the adjustment of the number of guest rooms and shortage in budget due to the expansion of the guest rooms area to the Minister of Health and Welfare, and applied for a change of the business plan to 9 rooms from 1,860 square meters from 1,860 square meters from 1,929.72 square meters, from 15 square meters from 15 square meters in accommodation facilities (one person room, four person room, seven person room, and one person room), and the Minister of Health and Welfare approved the change of the water

B. Reasons for the cancellation of the instant agreement

(1) On August 31, 2010, the Plaintiff held a resident public hearing to construct the instant building. A neighboring residents of the instant land opposed to the construction of the instant building on the ground that the instant building was accommodation facilities for the disabled among the instant buildings. On November 4, 2010, Nonparty 1, a neighboring resident, demanded the Ministry of Health and Welfare to disclose administrative information about KRW 2.2 billion of the government-funded budget of the instant building to the Ministry of Health and Welfare. On November 4, 2010, the Information Disclosure Council notified Nonparty 1 of the Ministry of Health and Welfare to Nonparty 1, under the title “the current status of the government-funded budget of the 2010 Marine Rehabilitation Center for the Disabled.”

(2) On January 19, 2011, the Defendant requested the Plaintiff to verify on the ground that “the main function of the data on resident briefing sessions distributed by the Plaintiff to the information disclosure council is “ rehabilitation exercise, mental training, seminars, etc.” and the type of the facility is “training facilities for the disabled among community rehabilitation facilities for the disabled under the Act on Welfare of Persons with Disabilities” and the use of the building in the instant case is not the lodging facilities, but the facilities for the elderly (public welfare facilities: Table 1 of the Enforcement Decree of the Building Act).”

(3) On February 23, 2011, the Plaintiff responded to the Defendant that the use of the instant building constitutes “a lodging facility” and falls under subparagraph 15 of Article 3-4 [Attachment Table 1] of the Enforcement Decree of the Building Act. The purpose of the National Treasury subsidy project is to “a lodging facility where the use of and access to the marine environment, such as sea water bath, is easy and the convenience facilities for the disabled are completed” and that the future operation plan of the building is scheduled to be used as “a lodging facility, physical training room, or multi-purpose room.”

(4) On March 2, 2011, the Defendant: (a) explained the type of facilities at the time of resident presentation as a training facility for the disabled among community rehabilitation facilities; and (b) stated the project cost under the Seoul Metropolitan Government budget as “the purpose of building a training facility exclusively for the disabled;” (c) notified the Plaintiff that the instant building was subject to cancellation of permission because it failed to meet the standards for the act in the park as a facility for the elderly and children, rather than a lodging facility; and (d) submitted the Plaintiff’s opinion that the instant building constitutes “a lodging facility” regardless of the purpose of granting national subsidies.

(5) On August 23, 2011, the Defendant revoked the consultation on construction to implement a park project (hereinafter “instant consultation revocation disposition”) on the ground that the use of the instant building was determined as a facility for the elderly and children (social welfare facilities) and that construction is not possible in the facility site for the facility site for the lower-class collective facility district pursuant to Article 18 of the former Natural Parks Act (hereinafter “instant consultation and revocation”).

C. Reasons for the refusal of the commencement of the instant case

(1) On July 19, 201, the Plaintiff filed an application for extension of the commencement date with the scheduled date of commencement as of August 1, 2012, on the ground that the commencement was postponed pursuant to the construction-related civil petition of the neighboring residents of the instant land.

(2) On August 23, 2011, the Defendant notified the Defendant that the extension of the construction period was impossible due to the cancellation of the instant construction consultation disposition (hereinafter “instant construction consultation disposition”).

[Ground of Recognition] In the absence of dispute, Gap evidence Nos. 1 through 17, Eul evidence No. 1-2, Eul evidence No. 2 and 3, Eul evidence No. 4-1, 2, Eul evidence No. 5 through 8, Eul evidence No. 9-1, 2, Eul evidence No. 10 through 14, Eul evidence No. 15-1, 2, Eul evidence No. 15-2, the purport of the whole pleadings

2. Related statutes;

Attached Table 1 is as stated in the relevant Acts and subordinate statutes.

3. Judgment on the Defendant’s main defense

A. The plaintiff cannot be the subject of the lawsuit seeking revocation of the instant consultations

The defendant asserts that since the plaintiff is not a citizen of the Republic of Korea, but a local government, and thus is a subject to remedy for infringement of rights or interests due to the revocation lawsuit of this case, the lawsuit seeking revocation of the consultation and revocation is unlawful.

Since the plaintiff is a local government as stipulated in Article 2 (1) 1 of the Local Autonomy Act and is a juristic person pursuant to Article 3 (1) of the same Act, the plaintiff has legal capacity and legal capacity under the Civil Act, and the other party to the disposition of an administrative agency is not always a natural person or a juristic person under private law, but a public organization, such as a public law, an incorporated association, or incorporated foundation, including a local government, can be a party to the disposition of consultation and cancellation, and the plaintiff is deemed to have been infringed upon the defendant's rights or interests due to the disposition of cancellation of consultation. Thus, the plaintiff can seek cancellation of the disposition of cancellation of consultation against

This part of the defendant's argument is without merit.

B. The assertion that the disposition of refusing the commencement of the instant case is not a disposition

The defendant asserts that since the period of one year remains from July 22, 2011 to August 2, 2012, which was the due date for extension of the commencement, the plaintiff applied for extension of the commencement of the construction of this case, the plaintiff can apply for the extension of the commencement of the construction of this case for other justifiable grounds, and even if the defendant notified the extension of the commencement of the construction of this case, it cannot be said that a right or obligation is created or borne by the plaintiff by the above notification act. Thus, the disposition of refusal of the commencement of the construction

The issue of whether a certain act of an administrative agency can be the subject of an appeal cannot be determined abstractly and generally. In a specific case, an administrative disposition is an enforcement of law with regard to specific facts conducted by an administrative agency as the subject of public authority, which directly affects the rights and obligations of the people. The decision should be made individually by taking into account the content and purport of the relevant Act and subordinate statutes, the subject, content, form and procedure of the act, the actual relation between the act and the disadvantage suffered by interested parties such as the other party, and the principle of administration by the rule of law and the attitude of the relevant administrative agency and interested parties (see Supreme Court Decision 2010Du7321, Jun. 10, 201).

In this case, according to Article 11(7) and Article 11(1)1 of the Building Act, where a person who has obtained a building permit fails to commence construction works within one year from the date he/she obtained permission, the construction permit holder shall revoke the permission. In such cases, where a justifiable ground exists, the construction permit holder may extend the commencement period within one year. Meanwhile, Article 14(2) and (4) of the Enforcement Rule of the Building Act provides that where a project owner intends to postpone the commencement period pursuant to the proviso to Article 11(7) of the Building Act, he/she shall submit to the permitting authority an application for extension of construction commencement in attached Form 14, and the permitting authority shall issue a report completion certificate in attached Form 15 or a written confirmation of extension of construction commencement in attached Form 16 to the reporter or applicant upon receipt of the application for extension of construction commencement

According to the above provisions, even if a domestic administrative agency receives an application for the extension of the commencement of the construction, and without any justifiable reason, it is possible to revoke the construction permit by deeming that the application for the extension of the construction commencement and the repair thereof are without any justifiable reason under the proviso of Article 11(7) of the Building Act, the application for the extension of the construction commencement and the repair thereof by the person who obtained the construction permit open a way to enable the building owner to escape from the risk of revocation of the construction permit in advance, and have the function of solving disputes over the cancellation of the construction permit early. The rejection of the application for the extension of the construction commencement ("the purpose of rejection of the construction") is likely to cause the cancellation of the construction permit. Furthermore, even if the application for the extension of the construction commencement in this case is illegal and revoked, the plaintiff is at risk of re-cancellation of the consultation disposition due to the postponement of the construction commencement in this case, even if the plaintiff's application for the extension of the construction commencement in this case does not affect the plaintiff's rights or interests, and the same holds true.

The defendant's assertion on this part is without merit.

4. Determination as to the legitimacy of the cancellation disposition of agreement in this case

A. The plaintiff and the defendant's assertion

(1) Defendant’s assertion 1)

㈎ 피고는 이 사건 건축협의처분 당시 이 사건 건축물이 단순한 숙박시설인 줄만 알고 있었고 장애인 및 그 가족을 대상으로 하는 노유자시설이라는 점을 알지 못하였는바, 원고가 이 사건 건축물의 용도에 대하여 피고를 기망하였기 때문에 자연공원법 제30조 제1항 제2호 에 따라 공원사업시행허가가 취소될 수밖에 없고, 공원사업시행허가가 취소되면 이 사건 건축협의 또한 건축법 제79조 제1항 에 의하여 건축법에 위반됨에 따라 취소할 수밖에 없으므로 이 사건 건축협의를 취소하기에 이르렀다.

㈏ 자연공원법상 숙박시설지에 숙박시설이 아닌 노유자시설을 건축하는 것은 구 자연공원법에 반하는 행위이므로, 이 사건 건축물의 건축이라는 위법행위를 저지하기 위하여 직권으로 이 사건 건축협의처분을 취소하였다.

(2) The plaintiff's assertion

㈎ 이 사건 건축물이 숙박시설이 아니라고 단정할 수 없을 뿐만 아니라, 가사 숙박시설이 아니라고 하더라도 이 사건 협의신청 전 피고는 이 사건 건축물이 장애인 전용시설임을 충분히 알고 이 사건 협의처분을 하였다. 원고가 피고에 대하여 용도를 속이는 등 부정한 행위를 한 바가 없으므로, 구 자연공원법 제30조 에 따른 취소사유에 해당하지 아니한다.

㈏ 원고는 장애인을 위하여 객실을 비치하고 그들로부터 일정한 금원을 받고 숙박을 하게 할 목적으로 이 사건 건축물을 건축하려고 하고 있으므로 이 사건 건축물은 건축법 제2조 제2항 제15호 및 같은 법 시행령 제2조 [별표1] 15호에서 정하는 숙박시설에 해당한다. 이 사건 건축물이 노유자시설임을 전제로 하는 이 사건 협의취소처분은 위법하다.

㈐ 피고는 정상인으로부터 일정한 금원을 받고 숙박을 하게 하는 시설은 자연공원 지역의 숙박시설로서 허가를 하고, 장애인으로부터 일정한 금원을 받고 숙박을 하게 하는 시설은 숙박시설이 아니므로 숙박시설로 허가할 수 없다고 주장하나, 피고의 이러한 처분은 평등권 및 장애인차별금지 및 권리구제 등에 관한 법률에 반한 처분으로서 재량권을 일탈·남용하였다.

㈑ 원고는 건축협의를 신청하기 전인 피고측과 면담하면서 이 사건 건축물의 장애인 및 그 가족들을 위한 숙박시설인 사실을 충분히 설명하고 피고측도 이를 환영하며 적극 협조하여 주겠다고 하여 이 사건 협의신청 및 협의처분을 받기에 이르렀고, 이에 따른 각종 계약을 체결하는 등 사업을 추진하여 오고 있다. 그럼에도 피고는 주민들의 반발에 부딪히자 이 사건 건축물이 숙박시설이 아니라는 이유로 협의취소처분을 하였는바, 이는 원고의 신뢰에 반하는 행위이다.

C. Determination

(1) As to the existence of grounds for revocation under Article 30 of the former Natural Parks Act

According to Article 30(1)2 of the former Natural Parks Act, the park management agency may revoke permission under the Natural Parks Act where permission under the items of subparagraph 1 is obtained or consultation is held by continuous or other unlawful means.

As to whether the Plaintiff had the Defendant conduct the instant consultation by deception or other unlawful means, the number of Non-Party 2’s testimony was added to the non-party 1’s 7m2 and the evidence revealed that the Plaintiff’s non-party 2 visited the Defendant on May 6, 2010, which was before the application for consultation, or the building of this case was accommodation facilities for the disabled and their families. ② The purpose of the instant project is to newly construct the Marine Rehabilitation Center, which was submitted by the Plaintiff to the Defendant on June 16, 2010, and “the method of operating the facilities: the entrustment of a social welfare foundation or a nonprofit corporation; the rehabilitation and family support for the severely disabled - mental training programs; the leisure and rehabilitation programs for the disabled - the disabled; and the content of the revised plan of the instant project plan, including the permission for the alteration of the area of the accommodation facilities, which was the first 7m2 and the previous plan for the implementation of the park project.”

In light of the above facts, the defendant is deemed to have sufficiently known that the building of this case was a facility for the disabled and their families at the time of the consultation and disposition. Accordingly, the consultation on the implementation of the park project of this case cannot be deemed to have a ground for revocation under Article 30 (1) 2 of the former Natural Parks Act, and the disposition for revocation of the consultation of this case, which is premised on

The plaintiff's assertion on this part is with merit.

(2) As to the existence of grounds for ex officio revocation

㈎ 이 사건 건축물은 장애인 및 그 가족들만을 이용대상으로 하는 사실, 이 사건 건축물은 숙박을 위한 객실 9실, 재활치료실, 세미나실, 식당, 취미실, 화장실 등으로 이루어진 사실, 이 사건 건축물의 운영 프로그램에는 중증장애인 재활지원, 숙박 및 문화시설을 제공함으로써 장애인 여가문화 지원이 포함되어 있는 사실, 원고는 1994년부터 장애인무료 해변캠프를 고성군 내지 양양군 등지에서 운영하여 왔는데, 이용객이 많아지고 공간과 전문시설의 부족으로 불편함을 초래하고 있어서 이 사건 건축물을 건축할 계획을 세우게 된 사실은 앞서 본 바와 같거나 앞서 든 증거에 의하여 인정할 수 있다.

㈏ 한편 구 자연공원법은 자연공원의 지정·보전 및 관리에 관한 사항을 규정함으로써 자연생태계와 자연 및 문화경관 등을 보전하고 지속 가능한 이용을 도모함을 목적으로 하고( 제1조 ), 자연공원을 효과적으로 보전하고 이용할 수 있도록 하기 위하여 공원관리청으로 하여금 공원계획으로 공원자연보존지구(생물다양성이 특히 풍부하거나 자연생태계가 원시성을 지니고 있어 특별히 보호할 필요가 있는 지역), 공원자연환경지구(공원자연보존지구의 완충공간으로 보전할 필요가 있는 지역), 공원자연마을지구(취락의 밀집도가 비교적 낮은 지역으로서 주민이 취락생활을 유지하는 데에 필요한 지역), 공원밀집마을지구(취락의 밀집도가 비교적 높거나 지역생활 중심 기능을 수행하는 지역으로서 주민이 일상생활을 유지하는 데에 필요한 지역), 공원집단시설지구 등 용도지구를 결정하게 하는데( 제18조 제1항 ), 그 중 공원집단시설지구는 자연공원에 들어가는 자에 대한 편의 제공 및 자연공원의 보전·관리를 위한 공원시설이 모여 있거나 공원시설을 모아 놓기에 알맞은 지역을 말하는 것인바( 제18조 제1항 제5호 ), 위 ‘공원시설’에 관하여 구 자연공원법 시행령(2010. 10. 1. 대통령령 제22420호로 개정되기 전의 것, 이하 같다) 제2조 는 공원관리사무소·탐방안내소·매표소·우체국·경찰관파출소·마을회관·도서관·환경기초시설 등의 공공시설( 제1호 ), 사방·호안·방화·방책·조경시설 등 공원자원을 보호하고, 탐방자의 안전을 도모하는 보호 및 안전시설( 제2호 ), 체육시설(골프장·골프연습장 및 스키장을 제외한다)과 유선장·어린이놀이터·광장·야영장·청소년수련시설·휴게소·전망대·대피소·공중화장실 등의 휴양 및 편익시설( 제3호 ), 식물원·동물원·수족관·박물관·전시장·공연장·자연학습장 등의 문화시설( 제4호 ), 도로(탐방로를 포함한다)·주차장·교량·궤도 등의 교통·운수시설( 제5호 ), 기념품판매점·약국·식품접객업소(유흥주점을 제외한다)·미용업소·목욕장·유기장 등의 상업시설( 제6호 ), 호텔·여관 등의 숙박시설( 제7호 ), 제1호 내지 제7호 의 시설의 부대시설( 제8호 )로 세분하여 정하고 있다. 그리고 구 자연공원법 시행령 제15조 제1항 은 집단시설지구를 세분하고자 할 때에는, 제2조 제1호 의 규정에 의한 공원시설과 그 부대시설이 필요한 지역인 공공시설지( 제1호 ), 제2조 제6호 의 규정에 의한 공원시설 및 그 부대시설이 필요한 지역인 상업시설지( 제2호 ), 제2조 제7호 의 규정에 의한 공원시설 및 그 부대시설이 필요한 지역인 숙박시설지( 제3호 ), 집단시설지구 안의 경관 및 생태계 보전을 위하여 특별히 보전이 필요한 지역인 녹지( 제4호 ), 제1호 내지 제4호 외의 시설이 필요한 지역인 기타 시설지( 제5호 ), 이용자의 증가에 대처할 예비지로서 필요한 지역인 유보지( 제6호 )로 세분할 것으로 규정하고 있다.

The purpose of the Building Act is to contribute to the promotion of public welfare by prescribing the standards for and purposes of use of the site and facilities of a building (Article 1 of the Building Act). The term “use” of a building is classified by similar structure, purpose of use and style (Article 2 (1) 3 of the Building Act), detached houses, apartment houses, Class I neighborhood living facilities, Class II neighborhood living facilities, cultural and religious facilities, sales facilities, transportation facilities, elderly and children (old children and children), training facilities, sports facilities, business facilities, accommodation facilities, etc. The detailed usage of a building belonging to each usage is to be prescribed by Presidential Decree (Article 2 (2) of the same Act). Article 3-4 [Attachment Table 1] of the Enforcement Decree of the Building Act, which provides that the term “nick facilities for the elderly and children” in the classification of the above usage as provided for in each subparagraph of Article 2 (2) of the Building Act, shall not fall under the category of “child and children welfare facilities, hotel facilities and accommodation facilities for the elderly and children, and shall not fall under the category 1 (a).

㈐ 이 사건으로 돌아와, 이 사건 토지는 공원집단시설지구내 숙박시설지에 위치하고 있으므로, 이 사건 건축물은 일응 구 자연공원법 시행령 제2조 제7호 에서 정하는 ‘호텔·여관 등의 숙박시설’에 해당하여야 할 것인바, 이에 관하여 본다.

6. The above provision and the above facts are as follows: (a) the building’s new accommodation facilities and the building’s new accommodation facilities under the Act No. 4 [Attachment Table 1] provides that the building’s physical accommodation facilities including hotel, domination, and other facilities similar to those under items (a) through (c) with the exception of tourist accommodation facilities; (b) the building’s new accommodation facilities and the building’s new accommodation facilities can no longer be established for the purpose of using the new accommodation facilities under the Act on Welfare of Persons with Disabilities; and (c) the building’s new accommodation facilities and the building’s new accommodation facilities can no longer be established for the purpose of using the new accommodation facilities under the Act on Welfare of Persons with Disabilities; and (d) the building’s new accommodation facilities cannot be established for the purpose of using the new accommodation facilities under the Act on Welfare of Persons with Disabilities as its main accommodation facilities. It is clear that the building’s new accommodation facilities and the building’s new accommodation facilities can no longer be established for the purpose of using the facilities under the Act on Welfare of Persons with Disabilities.

Therefore, the Defendant’s disposition of revocation of the instant consultation, which is premised on the premise that the instant building does not constitute “a lodging facility” under Article 2 subparag. 7 of the former Enforcement Decree of the Natural Parks Act, is unlawful. The Plaintiff’s assertion on

(3) Whether the discretionary authority is deviates or abused or not

Even though the building in this case does not correspond to accommodation facilities under Article 2 subparagraph 7 of the former Enforcement Decree of the Natural Parks Act, the implementation of the natural park project is affected by the maintenance of the national land and nature and the preservation of the environment, and the permission for implementation of the park project is a kind of discretionary act that must be determined by comprehensively considering the present state, location, and surrounding circumstances of the place of business, the period and subject of the implementation of the project, the appropriateness of the project, the contents, scale, and method of the project specified in the project plan, and its impact on the nature and the environment. Even if the administrative agency grants permission for the implementation of the park project, the administrative agency may cancel the illegal or unreasonable disposition it has against itself without any explicit legal basis (see Supreme Court Decision 2001Du9653, May 28, 2002). In the case of cancellation of the beneficial administrative act, it is reasonable to view that the cancellation of the permission can be restricted by taking into account the disadvantage of beneficiary, degree of trust of the other party, influence on the community or a third party, degree of illegality, and the passage after

In the instant case, the following circumstances revealed by the facts acknowledged earlier or the evidence revealed earlier, namely, it cannot be deemed that the Plaintiff was responsible for the consultation disposition of this case. The cancellation disposition of this case was made because neighboring residents filed a civil petition on the ground that the facilities for persons with severe disabilities were installed, and the building of this case cannot be deemed as a suspected facility. It cannot be deemed that the building of this case damaged the landscape in a natural park or infringe the interests of neighboring residents or visitors to the health, environment, or enjoyment of leisure life that they currently enjoy (the land of this case, which is to be constructed as the building of this case, is located in the north side of the river of the river of this case, and the north side of the land of this case is not developed, and it cannot be readily concluded that there was property or business losses for neighboring residents due to the construction of the building of this case, and it is difficult for the Plaintiff to view that there was a considerable loss of property exceeding the limit of tolerance of the construction of the building of this case, compared to the construction of the building of this case.

In this regard, the disposition of cancellation of the agreement in this case is unlawful. The plaintiff's assertion to this purport is also justified.

5. Determination as to the legitimacy of the disposition of non-permission for the extension of the commencement of the case

A. The plaintiff's assertion

Considering the fact that the Defendant’s cancellation disposition of the instant case is illegal and that there is no cause attributable to the Plaintiff’s non-execution of construction works, the instant application for postponement of construction works was abused and abused discretion.

B. Determination

As seen earlier, as long as the cancellation disposition of consultation in this case is illegal, the rejection disposition of the commencement of the construction in this case is also unlawful.

Although the Defendant asserts to the effect that the Plaintiff filed an application for the extension of construction period at this court is not due to the citizen’s civil petition, but because it is merely short of budget, and that there is no “justifiable cause” as stipulated in the proviso of Article 11(7) of the Building Act, in an appeal litigation seeking the cancellation of administrative disposition, the agency may add or alter other grounds only to the extent that the basic factual relations are recognized to be identical with the original grounds for disposition, and the existence of such basic factual relations is determined based on the same factual relations as the basic social facts based on the specific facts before the legal evaluation of the grounds for disposition. Thus, it cannot be said that there exists any additional or modified grounds or that the parties knew of such facts at the time of the disposition (see Supreme Court Decision 2009Du19021, Jan. 24, 2011). Thus, the Defendant’s assertion that the “the extension of construction period following the cancellation of the instant consultations and the existence or absence of justifiable grounds” as stated above cannot be further determined as identical to this part of the Defendant.

6. Conclusion

Therefore, the cancellation disposition of this case and the rejection disposition of the extension of construction of this case are unlawful without examining the remaining arguments of the plaintiff. Thus, the plaintiff's claim of this case seeking the cancellation is justified and it is decided as per Disposition by the assent of all participating Justices.

[Attachment Form 5]

Judges Kim Jong-hee (Presiding Judge)

1) According to the Defendant’s written disposition (Evidence A No. 18), although the reason for disposition is unclear, it seems that the Defendant’s two arguments are included in light of the progress of the instant disposition revoking consultations.