Plaintiff (Law Firm Multirate, Attorneys Kim Yong-mun et al., Counsel for plaintiff-appellant)

The head of Gangseo-gu Busan Metropolitan Government (Law Firm Gangnam General, Attorney Kim Ho-ho, Counsel for defendant-appellant)

November 6, 2013

Busan District Court Decision 2012Guhap5658 Decided May 23, 2013

1. Revocation of the first instance judgment.

2. The instant lawsuit shall be dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The Defendant’s disposition not to select an operator of a gas station within a development restriction zone against the Plaintiff on August 22, 2012 is revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Details of the disposition;

The court's explanation on this part is identical to the reasoning of the judgment of the court of first instance, and thus, this part is cited by Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

2. Determination as to the legitimacy of the instant lawsuit

(a) Relevant statutes;

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

B. Determination

ex officio, we examine the legitimacy of the instant lawsuit.

When multiple persons who applied for a beneficial administrative disposition such as authorization and permission are bound to make a disposition of permission, etc. against one party in competition with the other party, a person who did not obtain permission, etc. shall be entitled to seek the revocation of the relevant disposition even if the other party is not the other party to the disposition. However, in specific cases where the disposition is revoked, if it is not deemed that any disadvantage that was not subject to permission, etc. is recovered even if such disposition is revoked, there is no legitimate interest to seek the revocation of the relevant disposition (see Supreme Court Decision 98Du6272, Sept. 8, 1998, etc.). In this case, even if the disposition against the plaintiff was revoked, the selection disposition of the gas station operator against the non-party 1 in relation to the plaintiff is not revoked. Thus, the plaintiff cannot be selected as the gas station operator, and there is no legitimate interest to seek the revocation of this case.

[Now, even if there is a legitimate interest in seeking the cancellation of the disposition of this case against the Plaintiff, it should be conducted based on the data submitted to the Defendant by the period of receipt when there are many persons who applied for the beneficial administrative disposition, such as authorization and permission, and when the Defendant publicly announced the qualification requirements or criteria for selection when recruiting business operators, the evidence of qualification requirements or criteria for selection should be based on the data submitted to the Defendant by the period of receipt, and subsequent data cannot be considered as the reference data for determination. Accordingly, in the instant case where the administrative disposition was rendered in accordance with the criteria for selection set forth in the recruitment notice, it should be viewed as a principle. In light of the following circumstances, the Plaintiff may not be selected as a gas station operator in accordance with the recruitment notice of this case, in addition to the whole purport of the pleadings in the items of evidence Nos. 1 through 4, A, 6, and 9 (including the number of numbers).

1) Pursuant to the provisions of the Act on Special Measures for Designation and Management of Development Restriction Zones (hereinafter “Act”) and the Enforcement Decree of the same Act (hereinafter “Enforcement Decree”), the recruitment announcement of this case was to revise and publicly announce a plan for the placement of gas stations within development restriction zones, and accordingly, to recruit one gas station operator on the left side and right side between the Dobong-dong forest Dok-dong, Busan and the Yannam-si, Kimhae-si, Kimhae-si, the head of the Sinhae-si, the recruitment announcement was to recruit one gas station operator on the left side. The Plaintiff and Nonparty 1 submitted the plan for the operation of gas stations to each Defendant on April 3, 2012 and April 4, 2012, in order to be selected as the operator of the oil station on the left side pursuant to the recruitment announcement of this case.

Therefore, the defendant should examine each of the above criteria according to the qualification requirements and selection criteria for the recruitment notice of this case, and if the plaintiff and the non-party 1 do not have any special problem, they should select the operator of the left-hand station from among them. Thus, they had a relation of light-time.

2) The recruitment notice of this case stipulated the same contents of the provision of Article 18(2)3 of the Enforcement Decree as the qualification requirements for application of the operator of the gas station, and also stipulated the phrase “resident at the time of designation.” According to the above, the Defendant appears to have demanded the same requirements as the above provision of the Enforcement Decree as the qualification requirements for the recruitment notice of this case.

Article 12 (1) 1 (e) of the Act, Article 13 (1) [Attachment 1] 5 (e) [Attachment 1] 10 of the Enforcement Decree provides that only residents at the time of designation may establish a gas station with permission from the head of a Si/Gun/Gu, etc. in a development restriction zone. In this case, at the time of designation, the meaning of residents at the time of designation shall be deemed as defined in Article 18 (2) 3 of the Enforcement Decree. The recruitment notice of this case is based on the premise that "persons who reside in the relevant development restriction zone from the time of designation of the development restriction zone," and it is reasonable to view that the plaintiff and the non-party 1 and the non-party 1

3) According to the recruitment notice of the instant case, the plan for the operation of the gas station is specified as required documents. Specific accompanying documents stipulate “The document evidencing the fact of residence at the time of designation of a development restriction zone, the document evidencing the ownership of housing or land, the document regarding the ownership of the scheduled site for the project, the plan for the placement of the gas station,” and require the applicant to submit materials to verify the qualification requirements under the recruitment notice of the instant case and to examine the priority of applicants according to the selection criteria.

However, on April 3, 2012, the gas station operation plan which the plaintiff first submitted to the defendant on April 3, 2012, the plaintiff had been residing in Gangseo-gu Busan ( Address 1 omitted) located in the development restriction zone (hereinafter "the domicile of this case") on December 29, 1971 at the time of designation of the development restriction zone. However, on August 11, 1989, the plaintiff transferred his resident registration (hereinafter "the first transfer") to the domicile of this case on January 5, 191. On August 29, 191, the plaintiff transferred (hereinafter "the second transfer") to the domicile of this case on August 14, 1991, but did not meet the requirements for the second transfer to the development restriction zone (hereinafter "the second transfer") but did not appear to have actually resided in the development restriction zone or failed to meet the requirements for the submission of evidence as of October 14, 191.

On the other hand, according to the plan for the operation of gas stations which Nonparty 1 first submitted to the Defendant on April 4, 2012 according to the recruitment notice of this case, there seems to be no problem about the qualification requirements of Nonparty 1.

4) In the recruitment announcement of this case, the first selection criteria of the gas station operator are stipulated as “the date of receipt (the same date shall be the same order, and the case received by the first two days prior to the date of the enforcement of the placement plan shall be the same order)” but the proviso thereof states as “when the supplementation of the documents received due to the deficiencies of the required documents is requested, the date the supplementary documents are completed and received shall be the final order of receipt.”

As seen earlier, although it was clearly revealed that the Plaintiff first submitted to the Defendant on April 3, 2012 the gas station operation business plan and twice or outside the development restriction zone, other evidentiary documents proving that the Plaintiff met the qualification requirements for application pursuant to the instant recruitment notice, were not attached. Moreover, on June 7, 2012, the Defendant submitted a written confirmation (Evidence No. 6-2) to the Plaintiff on June 15, 2012 that “the Plaintiff was entering the development restriction zone outside the development restriction zone for a period of up to three years, so documents proving whether he/she resided outside the development restriction zone for the reason of production, etc.” was defective, and the Plaintiff submitted a written confirmation (Evidence No. 6-2) to the Plaintiff on June 15, 2012. This written confirmation is merely the Plaintiff’s subjective opinion, and it is insufficient

If so, as of April 3, 2012, the first receipt date of the Plaintiff cannot be compared with Nonparty 1 as of April 3, 2012, and even if the Plaintiff’s written confirmation at the Defendant’s request (in accordance with the written confirmation submitted by the Plaintiff, it is difficult to conclude that the Plaintiff received the qualification requirements by the time of the instant disposition, as it is insufficient to prove the qualification requirements) is deemed the receipt date of the Plaintiff, the order of receipt by the Plaintiff is lower than Nonparty 1, who received on April 4, 2012).

3. Conclusion

Therefore, the lawsuit of this case shall be dismissed in an unlawful manner, and the judgment of the court of first instance is unfair with different conclusions, so the judgment of the court of first instance shall be revoked and the lawsuit of this case shall be dismissed as per Disposition.

[Attachment Form 5]

Judges Lee Jong-sung (Presiding Judge)