[1] In an appeal seeking the revocation of an administrative disposition, whether the grounds for the initial disposition and the facts that are different from those of basic facts can be asserted as grounds for disposition (negative), and the standard for determining the identity of basic facts

[2] The case holding that the grounds for new additional disposition are identical to the grounds for original disposition in the lawsuit seeking revocation of the disposition by the disposition agency which rejected the application for a building permit for the golf practice range

[1] Articles 26 and 27 of the Administrative Litigation Act / [2] Articles 26 and 27 of the Administrative Litigation Act / [2] Articles 26 and 27 of the Administrative Litigation Act

[1] Supreme Court Decision 99Du6392 delivered on March 23, 2001 (Gong2001Sang, 1015) Supreme Court Decision 2000Du8684 Delivered on September 28, 2001 (Gong2001Ha, 2371) Supreme Court Decision 2003Du2182 Delivered on May 30, 2003 (Gong2004Du4482 Delivered on November 26, 2004)

Plaintiff (Attorney Yoon-sung et al., Counsel for the plaintiff-appellant)

Si interest market (Attorney Park Jong-sung, Counsel for the plaintiff-appellant)

Seoul High Court Decision 2004Nu17916 delivered on July 26, 2005

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

1. The judgment of the court below

citing the reasoning of the judgment of the court of first instance, the court below determined that on August 29, 2003, the Plaintiff applied for a new construction permit on the ground surface of 10,096m2 (hereinafter “instant site”) which was owned by the Defendant on August 10, 203 (hereinafter “the instant site”) with the size of 1st, 3rd, 603m2, 1769m2, and neighborhood living facilities (hereinafter “the instant site”) of 1st, 3rd, 603m2, 1769m2 (hereinafter “the instant site”). On the ground that the Defendant’s request for construction permit was not made for comprehensive development of powders and construction performance test site in Hancheon Co., Ltd., which was buried to create a site for the instant site for the purpose of creating a new site for the instant site for the purpose of constructing a new site for the instant site for the purpose of the instant land use plan to the extent that it did not constitute “the ground for the instant land use permit to be determined after examination on the entire reclaimed land reclamation site.”

Furthermore, even if the ground for the above disposition of the defendant's assertion is recognized as identical to the original ground for the disposition and basic factual relations, the court below determined that even if the land price of this case was part of the reclaimed land reclaimed for the purpose of comprehensive development of powder and the creation of a performance test site site, it is difficult to find a place to consider the residents' rest space or other natural landscape, except for the lake of this case, in light of the fact that it is difficult to view that the area of the lake of this case in comparison with the area of the building site of this case and its neighboring facilities is larger than the area of the lake of this case, considering the circumstances that the defendant formed the lake Park and used it as a rest space for neighboring residents, even if the plaintiff planned to do so, it is difficult to view that the surrounding area of the lake of this case as a sports facility of this case is not compatible with the landscape of the lake of this case as a sports facility of this case.

2. Judgment of the Supreme Court

However, we cannot accept the above judgment of the court below for the following reasons.

A. In an appeal seeking the revocation of an administrative disposition, from the perspective of the substantive rule of law and the protection of confidence in the people who are the other party to the administrative disposition, the agency is not allowed to claim as a ground for disposition on the ground of a separate fact that is not recognized as identical in the factual basis of the original disposition. However, other grounds may be added or modified within the scope recognized as identical in the basic factual basis of the original disposition. The existence of the factual basis here is determined depending on whether it is identical in the basic social factual basis that is based on the specific facts before the disposition is legally assessed (see, e.g., Supreme Court Decisions 200Du8684, Sept. 28, 2001; 2004Du4482, Nov. 26, 2004).

According to the records, the defendant's reservation of the decision to grant a building permit until the examination of the future land use plan, such as urban planning on the whole reclaimed land including the application site of this case, has the meaning that if the practice site of this case is first constructed without specifically determining the land use plan of this case including the application site of this case, it may not be achieved in harmony with the actual use condition or surrounding environment or landscape of the future surrounding area. Therefore, even if the defendant did not specify the specific ground law at the time of the disposition of this case, it may be deemed that the defendant is already in conflict with subparagraph 4, even if it did not specify the specific ground law at the time of the disposition of this case.

Furthermore, the grounds for the initial disposition and the grounds for the new disposition that the defendant newly added in the lawsuit of this case are adjacent to the lake of this case formed in the course of reclamation of public waters. In addition, the purport of the disposition is to deny the building permission as it is necessary for important public interest, such as urban planning related to surrounding environment and conservation of surrounding landscape, and thus, the identity of basic facts is recognized. The grounds for disposition asserted by the defendant in the lawsuit of this case are merely embodying the original grounds for disposition, and it does not constitute an addition or alteration of the grounds for disposition.

B. Meanwhile, according to the records, Sinsi established a plan to create a park on 25 lots, including the instant lake and Sinsi (detailed lot number omitted), including the instant application site, around December 17, 2002 by accepting the local residents' request, and around December 17, 2002. On November 11, 2003, a park creation project is being implemented as of November 11, 2003, such as going through public inspection procedures for the determination of the Si Park Management Plan. As a part of this, first of all, a park creation project is being implemented, including 1.3 km ecological exploration, including 1.3 km, in the vicinity of the instant lake, by creating a resting space for residents in the instant lake, and installing convenience facilities, such as riverside stage and sperm, and by improving the growth plants of 12-class 18,500 and 10-class 6,000, it is widely used as a resting space for residents, 150 meters in length and 40 meters in length.

Therefore, in the event that the practice hall of this case is constructed in connection with the number of houses currently being used as the rest space for the present residents, it is anticipated that it would not be in harmony with the surrounding environment or landscape, such as impairing the atmosphere of the lake park that is pleasant and natural fluent, and the prospect is expected. Therefore, there is sufficient room to deem that the disposition of this case, which rejected the application for the building permit of this case, constitutes a deviation or abuse of discretionary authority, is difficult.

C. Nevertheless, the judgment of the court below that the disposition of this case is unlawful on the ground that the grounds that the defendant alleged additionally in the lawsuit of this case are not identical to the grounds and basic facts of the original disposition of this case, and that it does not conflict with subparagraph 4, and therefore, it does not conduct a necessary deliberation, or it is erroneous in the misapprehension of legal principles as to the criteria for permission for development activities under the National Land Utilization Act, which affected the conclusion of the judgment. The ground of appeal pointing this out has merit.

3. Conclusion

Therefore, the judgment 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 Kim Yong-dam (Presiding Justice)