[1] Whether an administrative agency that is obligated to take a new measure against an application for a relocation pursuant to the purport of the final decision on revocation of rejection, can take a new measure of rejection (affirmative) and the standard for determining whether a new ground exists

[2] The case affirming the judgment below holding that the second rejection disposition constitutes a second rejection disposition under Article 30 (2) of the Administrative Litigation Act, and is not contrary to the binding force of the final and conclusive judgment revoking the previous rejection disposition, in case where the second rejection disposition is rendered on the ground that the second rejection disposition is not against the binding force of the final and conclusive judgment revoking the previous rejection disposition, since the second rejection disposition was rejected on the ground that the second rejection disposition is an area expected to be commercialized for the creation of the Media Ballast for the creation of the multi-family housing of Gap corporation

[1] According to Article 30(2) of the Administrative Litigation Act, in a case where a judgment revoking a rejection disposition by an administrative agency becomes final and conclusive, an administrative agency is obligated to make a second disposition against an application for a previous disposition in accordance with the purport of the judgment. The legality of an administrative disposition is determined based on the statutes and facts at the time when the administrative disposition was taken. As such, the administrative agency, which is the party to the final and conclusive judgment, may make another disposition of rejection on the ground of new grounds that occurred after the previous disposition, and such a disposition also constitutes a second disposition as provided in the above provision. Here, whether a new ground is “new ground” should be determined based on whether the grounds determined as unlawful and the basic facts are recognized. The existence of the basic factual relations is determined based on the same factual basis, based on the specific facts before the legal assessment of the grounds. The existence of the basic factual basis is determined based on the same in a basic point of view as at the time of the addition or alteration without stating the grounds, and the parties have already existed and

[2] The case affirming the judgment of the court below that the second rejection disposition constitutes a second rejection disposition under Article 30 (2) of the Administrative Litigation Act and it does not violate the binding force of the final and conclusive judgment revoking the previous rejection disposition, in case where the second rejection disposition is based on the reason that the second rejection disposition was designated as a restricted area for development activities after the previous rejection disposition, and that the second rejection disposition constitutes a second rejection disposition under Article 30 (2) of the Administrative Litigation Act and the second rejection disposition is not against the binding force of the final and conclusive judgment revoking the previous rejection disposition.

[1] Article 30 (2) of the Administrative Litigation Act / [2] Article 30 (2) of the Administrative Litigation Act

[1] Supreme Court Order 97Du22 dated January 7, 1998 (Gong1998Sang, 532), Supreme Court Decision 2003Du14161 Decided March 11, 2004 (Gong2006Sang, 122), Supreme Court Decision 2009Du15586 Decided November 26, 2009 (Gong2010Sang, 48)

Hansung Construction Co., Ltd. (LLC, Kim & Lee LLC, Attorneys Noh Young-soo et al., Counsel for the defendant-appellant)

Goyang market (Law Firm LLC, Attorneys Park Jong-soo et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2010Nu27228 decided May 18, 201

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

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1 and 2

According to the provisions of Article 30(2) of the Administrative Litigation Act, when a judgment revoking a rejection disposition by an administrative agency becomes final and conclusive, the administrative agency that made the previous disposition is obligated to make a new disposition in accordance with the purport of the judgment. Whether an administrative disposition is legitimate shall be determined based on the Acts and subordinate statutes at the time when the previous administrative disposition was taken. Thus, the administrative agency that is the party to the final and conclusive disposition may make a new rejection disposition on the ground of a new ground that it was taken after the previous disposition, and such a disposition also constitutes a new disposition provided for in the above provisions (see, e.g., Supreme Court Order 97Du22, Jan. 7, 1998; Supreme Court Order 2003Du14161, Mar. 11, 2004; Supreme Court Decision 2003Du16169, Mar. 11, 2004). Here, whether a new ground exists shall be determined on the basis of whether there is a basic factual identity of the previous disposition and the same ground (see Supreme Court Decision 2000Du75, Dec. 29, etc.

According to the reasoning of the judgment below, the court below held that the new facts that the daily price of the instant land was designated as a restricted area for development activities on December 26, 2007, which was after the previous disposition of refusal was made on December 28, 2009, constitute a second disposition under Article 30(2) of the Administrative Litigation Act, on the grounds that there are different specific facts which form the basis of the previous disposition of refusal and the contents, and thus, the basic facts cannot be deemed to be identical.

In light of the above legal principles and records, the above judgment of the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the binding force of the revocation judgment or the identity of basic facts.

The Supreme Court Decision 9Du5238 delivered on March 23, 2001 cited in the ground of appeal by the plaintiff is not a rejection disposition against the previous application on the ground that the previous application can be asserted valid before the closing of arguments in the fact-finding court. It does not purport that the previous disposition cannot be taken again on the ground that it occurred after the previous disposition.

2. As to the third ground for appeal

In general, in administrative legal relations, in order to apply the principle of the protection of trust to the acts of an administrative agency, the first administrative agency should name the public opinion that is the subject of trust to the individual, the second administrative agency should have a reason attributable to the individual when the statement of opinion is well-grounded. Third, the individual should have trusted that the statement of opinion is well-grounded, and the third, the administrative agency should have conducted any act against the above statement of opinion. Fourth, the administrative agency should have made a disposition contrary to the above statement of opinion so that the interests of the individual who trusted that statement of opinion would be infringed. Lastly, when taking an administrative disposition in accordance with the above statement of opinion, it should not be likely to seriously undermine the public interest or legitimate interests of a third party (see Supreme Court Decisions 2004Du46, Jun. 9, 2006; 2006Du10931, Jan. 17, 2008, etc.).

According to the reasoning of the judgment of the court below, the court below determined that it is difficult to recognize that the defendant had a trust that the plaintiff would obtain the approval of the housing construction project plan without any illegality in the defendant's purpose and motive of the disposition of this case, and that the defendant's expression of the intent that " will approve the housing construction project plan" is merely an original answer that the permission would be granted unless there is a problem after the examination in accordance with the related Acts and subordinate statutes.

In light of the relevant legal principles and records, the above determination by the court below is just and acceptable, and contrary to the allegations in the grounds of appeal, there are no errors in the misapprehension of legal principles as to the Housing Act and the principle of the protection of trust and good faith.

3. Conclusion

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

Justices Park Si-hwan (Presiding Justice)