Whether there is a benefit in a lawsuit seeking revocation of an illegal administrative disposition where reinstatement is impossible (negative)

A lawsuit seeking the cancellation of an illegal administrative disposition is a lawsuit seeking the restoration of the original state by excluding the state of illegality caused by the illegal disposition, and the protection and remedy of the rights and interests infringed or interfered with the disposition, so even if the cancellation of the illegal disposition is impossible, there is no benefit of lawsuit seeking the cancellation.

Article 12 of the Administrative Litigation Act

Supreme Court Decision 75Nu230 Delivered on June 30, 1961

Korean Black Mining Corporation

[Defendant-Appellant] Kim In-hwan, Counsel for defendant-appellant

Seoul High Court Decision 85Gu1288 delivered on August 29, 1986

Supreme Court Decision 85Nu621 Decided November 12, 1985

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

A lawsuit seeking the cancellation of an illegal administrative disposition is to restore it to its original state by excluding the state of illegality caused by the illegal disposition, and to protect or relieve the rights and interests infringed or interfered with the disposition.

In light of the records, the area where the instant housing material production factory for which the Plaintiff seeks registration is constructed is located within the urban planning area where the determination and public notice of the new half-month urban planning was made pursuant to Article 12(1) and (4) of the Urban Planning Act as of December 4, 1976. After that, the urban planning project is followed and compensation for the factory site and the factory is already paid, and the above factory seems to have been already removed around February 8, 1985, which is before the closing of argument by the court below. However, even if the Defendant’s refusal disposition of this case for which the Plaintiff seeks registration was made was unlawful, it cannot be said that there was no benefit of lawsuit seeking its revocation.

There is no error of law in the administrative litigation that the court below did not exhaust all necessary deliberations as to the interest of the lawsuit in the administrative litigation that the court below, which entered the main body with excessive deliberation and determination.

Therefore, the judgment of the court below is reversed, and the case is remanded to the Seoul High Court which is the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Dal-sik (Presiding Justice)