[1] Requirements for the application for indirect compulsory enforcement of the judgment revoking rejection disposition

[2] The case holding that a new rejection disposition is void as it goes against the binding force of the previous rejection disposition that became final and conclusive, in a case where the administrative agency again issues a rejection disposition on the grounds that the order of the Urban Planning Act was amended while the above revocation disposition was pending, without making a second rejection disposition, even though the judgment ordering the revocation of the rejection disposition was final and conclusive

[1] Even if a final and conclusive judgment on the revocation of the rejection disposition was rendered but the administrative agency did not make any second disposition, or even if the second disposition was made, if the second disposition goes against the binding force of the final and conclusive judgment on the revocation of the previous rejection disposition, it would be the same as when the second disposition was not made. Therefore, in such a case, it shall be deemed that the requirements for the second application for indirect compulsory enforcement under Articles 30(2) and 34(1) of the Administrative Litigation Act

[2] In a case where an administrative agency again issues a rejection disposition on the grounds that the order of the Urban Planning Act was amended during the proceeding of the revocation suit without taking a second measure, the case holding that a new rejection disposition by applying the amended Act and subordinate statutes would be null and void as it goes against the binding force of the final decision of the revocation of the previous rejection disposition, on the ground that the amended Act and subordinate statutes have a transitional provision that the previous provisions apply to the application for permission of development at the time of enforcement of the revised Act and subordinate statutes.

[1] Articles 30(2) and 34(1) of the Administrative Litigation Act / [2] Articles 46 and 49 of the former Urban Planning Act (amended by Act No. 6243, Jan. 28, 200; Act No. 6655, Feb. 4, 2002); Article 10(1) of the Addenda to the former Enforcement Decree of the Urban Planning Act (amended by Act No. 6655, Jul. 1, 200); Article 30(2) of the Administrative Litigation Act

[1] [2] Supreme Court Order 96Du70 dated Feb. 4, 1997 (Gong1997Sang, 670) Supreme Court Order 97Du22 dated Jan. 7, 1998 (Gong1998Sang, 532)

Gapin Construction Co., Ltd. (Attorney Yang Yang-yang et al., Counsel for the defendant-appellant)

Head of the Busan Metropolitan Government Maritime Affairs Office

Busan High Court Order 2002Ra1 dated March 29, 2002

The order of the court below is reversed, and the case is remanded to Busan High Court.

The grounds of re-appeal (to the extent of supplement in case of each re-appeal filed after the lapse of the period) are examined.

1. Summary of the original judgment

A. The lower court acknowledged the following facts based on the records.

(1) On April 14, 200, the applicant filed an application for approval of the housing construction project plan (hereinafter referred to as the “application for approval of the project in this case”) with the content of constructing the 88-household apartment houses and neighborhood living facilities of the 4th underground floors, the 17th floor size on the ground, including the other party, the total area of the six lots of land, including the Busan Metropolitan City ( Address omitted) and the Busan Metropolitan Government (hereinafter referred to as “instant land”).

(2) On June 1, 200, 1, 200, 'the other party's land of this case is an area to be preserved as a part of the implementation section of the Doduk River Construction Project, and is promoting the alteration of the specific use area as a park area; 2) there is a high voice for preservation on the public opinion floor such as civic groups and media, etc.; 3) on the ground that it is designated as an urban design area and establishes a project plan in conformity with the urban design that is publicly announced and implemented after the urban design service, the other party reserved the approval; and thus, it rejected the application for the approval of the project of this case (hereinafter referred to as the "previous refusal disposition").

(3) The applicant filed a lawsuit against the other party seeking revocation of the previous rejection disposition by Busan District Court 200Gu4439, which was sentenced to a favorable judgment on November 23, 2000. The other party appealed with Busan High Court 2001Nu151. However, the Busan High Court's decision on August 24, 2001 can not be deemed as a violation of the planned development of the above area because the housing construction project, such as the contents of the application of this case, such as the city, i.e., shipping line, does not impede the development of the area, and the other party made a prior decision on the housing construction project plan of this case with almost the same contents as the previous land, and it appears that there were significant changes in the function and landscape of this area to the extent that it is necessary to refuse the application of this case as of April 14, 200, and that it is considerably difficult for the other party to the previous rejection disposition to take account of the situation where the previous apartment construction project plan of this case and its surrounding land, etc.

(4) In accordance with Articles 46 and 49 of the Urban Planning Act (wholly amended by Act No. 6243 of Jan. 28, 2000 and enforced from July 1, 200) to limit the permission under the conditions as prescribed by the Municipal Ordinance of the relevant local government with respect to an area where a lawsuit seeking revocation against the previous rejection disposition is pending in the appellate trial, which is deemed necessary for urban planning after deliberation by the local urban planning committee, the other party decided and publicly announced an area from the Han-dong, Busan, Daegu, Daegu, and Daegu, to the boundary of a government office-owned natural park, including the land in this case, as a restricted area for permission for development. On Oct. 19, 2001, the other party again decided and publicly announced the land in this case as a restricted area for permission for development, and ② the application for approval for the business in this case became insufficient under Article 6 of the Enforcement Rule of the Building Act.

B. On the basis of the facts acknowledged above, the court below rejected the applicant's application seeking damages for indirect compulsory performance against the other party pursuant to Article 34 of the Administrative Litigation Act, by asserting that the new rejection disposition does not constitute a disposition in accordance with the final and conclusive judgment under Article 30 (2) of the Administrative Litigation Act (hereinafter referred to as "re-disposition"), and on the following grounds.

In other words, the re-disposition means a new disposition to supplement the reasons for illegality stated in the final and conclusive judgment, and it does not mean the previous disposition to accept the application that has been rejected in the final and conclusive judgment, and on the other hand, the legality of the administrative disposition is determined on the basis of the relevant law and fact at the time when the administrative disposition was taken. Thus, in the case where the law was amended and implemented after the disposition of refusal, the disposition of rejection of the previous application may be issued for a new reason, and such disposition also constitutes a re-disposition as provided in Article 30(2) of the Administrative Litigation Act. The new rejection disposition constitutes a new ground for the new provision of the City Ordinance after the previous rejection disposition is made for a new reason, and therefore, the application of indirect compulsory enforcement of this case is without merit.

2. The judgment of this Court

A. Article 30(2) of the Administrative Litigation Act provides that "if an administrative agency does not take a measure under Article 30(2), the administrative agency which has taken the measure shall take a new measure against the previous application in accordance with the purport of the judgment where the party's request is rejected," and Article 34(1) of the Administrative Litigation Act provides that "if an administrative agency does not take a measure under Article 30(2), the court of the first instance may, upon the party's request, determine a reasonable period and order the administrative agency to compensate for damages according to the delayed period and, if the administrative agency does not take the measure within that period, the court of the first instance may order the administrative agency to compensate for damages immediately for the delayed period, upon the party's request." Thus, even though a final and conclusive decision on the revocation of the measure of refusal was made, if the measure is not made again, or if it is automatically null and void due to a violation of the binding force of the final and conclusive judgment on the previous measure of refusal, it shall

B. According to the facts and records acknowledged by the court below, the grounds for the other party's new rejection disposition are stipulated in Article 49 (2) and (3) of the Urban Planning Act amended and enforced after the previous rejection disposition, and the Special Metropolitan City Mayor, Metropolitan City Mayor, Metropolitan City Mayor, or the head of Si/Gun may restrict permission for development activities only once for an area that is newly established in an urban planning zone and is expected to significantly change the standards for permission for development activities if the urban planning is determined, and is recognized as especially necessary for the urban planning. In this case, the restriction area, restrictions, acts subject to restriction, restrictions and restriction period shall be publicly notified in advance, based on Article 23 (1) and (2) of the Urban Planning Ordinance of Busan Metropolitan City, which was enacted on October 26, 200, pursuant to the purport of Article 23 (1) and (2) of the Urban Planning Ordinance of Busan Metropolitan City, which was enacted on January 18, 201. Thus, the other party is determined and publicly notified as the permission area for development activities.

C. However, Article 10 (1) of the Addenda of the Enforcement Decree of the Urban Planning Act (amended by Presidential Decree No. 16891 of July 1, 200) and Article 3 (1) of the Addenda of the Busan Metropolitan City Urban Planning Act (amended by Presidential Decree No. 16891 of the same Act) have transitional provisions that apply the previous provisions to the development activities in case of an application for the development activities at the time of the enforcement of the above Enforcement Decree and Municipal Ordinance. Thus, the application for the approval of the business in this case made on April 14, 200 before the enforcement decree or Municipal Ordinance became effective shall be subject to the re-disposition in accordance with the previous provisions, not the Urban Planning Act or the above Ordinance. Therefore, the grounds for the new rejection disposition made by the other party cannot be said to be a new ground in accordance with the amendment of the existing rejection disposition which does not have the binding force of the final rejection disposition, so the new rejection disposition conflicts with the binding force of the previous rejection disposition (and Article 6 of the Enforcement Rule of the Building Act, etc.).

Therefore, it cannot be said that the other party made a second disposition under Article 30 (2) of the Administrative Litigation Act, and it is the same as the case where the second disposition under the above provision is not made. Thus, the applicant is deemed to meet the requirements necessary for the second disposition.

The Supreme Court Order 97Du22 dated January 7, 1998, cited by the court below, is related to a matter for which the transitional provisions concerning the amended provisions are not included in the amended provisions, and it is not appropriate to be invoked in this case.

D. Nevertheless, the court below rejected the application for indirect compulsory performance of this case only for the reasons stated in its ruling, which found the new rejection disposition as a re-disposition pursuant to the amendment of the Act and subordinate statutes, with the exception of the transitional provisions of the Enforcement Decree of the Urban Planning Act or the above ordinances, and there is no error of law by misunderstanding the binding force of the revocation ruling or the legal principles on indirect compulsory performance under the Administrative Litigation Act. The ground for re-appeal pointing this out has merit.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of reappeal, the order of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Seo-sung (Presiding Justice)