Plaintiff 1 and one other (Attorney Lee Young-young, Counsel for the plaintiff-appellant)

The head of Seocheon-si Office

March 15, 2013

Incheon District Court Decision 2012Guhap1758 Decided September 6, 2012

1. Revocation of the first instance judgment.

2. The case is remanded to the Incheon District Court.

The judgment of the court of first instance is revoked. The defendant's notification of the result of prior examination (non-permission for building or development) against the plaintiff 1 on January 6, 2012 shall be revoked.

1. Basic facts

The following facts are not disputed between the parties, or may be admitted by adding to the whole purport of the pleadings each entry in Gap evidence 1, 2, 5, 6, Eul evidence 1, 2 (including each number).

On December 26, 2011, Plaintiff 1 filed a request with the Defendant for a prior examination as to whether it is possible to grant a building permit or permission for development activities on December 26, 201, in order to construct multi-family housing with four or less stories of forest land in Seocheon-gu, Seocheon-gu (hereinafter “the instant forest”) (hereinafter “the instant forest”). Plaintiff 2 is the owner of the instant forest with the father of Plaintiff 1.

On January 6, 2012, the Defendant notified Plaintiff 1 that it is impossible to engage in development activities (hereinafter “instant notification”) upon consultation with the relevant department on the claim for prior examination.

2. Determination on this safety defense

A. The defendant's assertion

The defendant, in itself, does not directly limit the rights of the plaintiffs or impose obligations on them, and thus does not constitute an administrative disposition subject to appeal litigation. Thus, the lawsuit of this case is unlawful.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

The issue of whether an administrative agency's act is deemed an administrative disposition cannot be determined abstract, general, and in specific cases, an administrative disposition is an act that directly affects the rights and obligations of the people as a law enforcement with regard to a specific fact conducted by an administrative agency as a public authority. In light of the contents and purport of the relevant Acts and subordinate statutes and whether the act satisfies the requirements of establishment or validity as an administrative disposition to a certain extent in the subject, content, form, procedure, etc. of the relevant Acts and subordinate statutes, substantial relation between the act and disadvantage suffered by interested parties such as the other party, and attitude of the administrative agency and interested parties related to the pertinent act, etc. (see Supreme Court Decisions 2005Du4397, Jun. 14, 2007; 2006Du18362, Sept. 11, 2008, etc.).

Article 19(1) of the Civil Petitions Treatment Act (hereinafter “Civil Petitions Treatment Act”) provides that a civil petitioner may file a petition with a summary document before submitting civil petition documents in the form of a large-scale economic cost to the head of the administrative agency. Paragraph (3) of the same Article provides that the head of the administrative agency shall notify the civil petitioner of the result of the prior examination, and that the civil petition shall not be processed by means of rejection, etc. for any other reason not publicly notified at the time of notification of the result of the prior examination, except in cases where the civil petitioner's cause or force majeure or other special reason is not possible. Paragraph (4) of the same Article provides that the head of the administrative agency shall prepare and implement a legal and institutional system necessary for the efficient operation of the prior examination system pursuant to Paragraph (1). Meanwhile, Article 31(3) of the Enforcement Decree of the Civil Petitions Treatment Act provides that the head of the administrative agency shall minimize the required documents of the civil petition subject to prior examination, and that the head of the administrative agency shall not additionally request required documents when he receives a fixed civil petition after receiving the prior examination.

As to whether the instant notice is an administrative disposition, it is reasonable to view that the Defendant’s instant notice on the Plaintiff’s request for prior examination related to the Plaintiff’s building permit constitutes an administrative disposition that is subject to appeal litigation in light of the following circumstances known under the provisions of the above Act and subordinate statutes:

① The purpose of the prior review under Article 19(1) of the Civil Petitions Treatment Act is to prevent civil petitioners from suffering from unnecessary economic and time losses by examining whether civil petitioners can obtain a construction permit or permission for development in advance and informing the civil petitioners of whether the permission-granting agency may obtain a construction permit or permission for development in order to prepare documents necessary for an application for permission, as the petitioner filed an application for permission after being filed a large-scale cost, but it is found that there are grounds for non-permission at the permission stage, and thus, if non-permission is found to exist, it would cause substantial economic and time losses if non-permission is granted.

(2) Article 19(3) of the Civil Petitions Treatment Act imposes an obligation on a civil petitioner to notify the result of the prior examination to the head of the administrative agency who has received the request for prior examination. According to Article 19(3) of the same Act and Article 31(3) and (4) of the Enforcement Decree of the same Act, where the head of the administrative agency notifies the civil petitioner that it is possible, the head of the administrative agency later notifies the civil petitioner of the result of the prior examination, the head of the administrative agency may not refuse the permission by rejecting the request for prior examination by citing any other reasons not specifically presented when notifying the result of the prior examination unless there is any special reason, and the head of the

③ If the notification of this case is entirely excluded from the subject of judicial review, the civil petitioner shall file an application for formal review with a large-scale expense and receive a rejection disposition against it and then dispute the rejection disposition. Therefore, it also goes against the purport of the system that prepares the prior review request system.

Therefore, the defendant's defense is without merit.

3. Conclusion

Thus, the judgment of the court of first instance, which rejected the lawsuit of this case on the ground that the notice of this case is not an administrative disposition, shall be revoked unfairly, and the case shall be remanded to the court of first instance pursuant to Article 8(2) of the Administrative Litigation Act and Article 418 of the Civil Procedure

[Attachment Form 5]

Judges Lee Jae-won (Presiding Judge) et al.