[1] Whether only the fact that a certain administrative disposition was revoked in an appeal litigation after the pertinent administrative disposition can be determined immediately by the public official’s intentional or negligent act and constitutes a tort (negative), and the requirements and criteria for establishing State liability and its determination

[2] The content of official duties and the standard for determining the proximate causal relationship between the violation of official duties and the occurrence of damages, if the State is liable for damages due to the violation

[3] In a case where a local government head Gap's rejection disposition of a building permit application for construction permit was revoked by a final judgment, and a public official in charge delays the re-disposition in accordance with the purport of the judgment, and thereafter added additional clauses to the illegal part while granting a building permit, and subsequently Gap delayed the acceptance of the construction permit report, the case affirming the judgment below which held that a proximate causal relation is acknowledged between the above illegal act and the damages equivalent to the rent of the building that were not obtained during the period of delay in the construction of the building

[1] Article 2 (1) of the State Compensation Act, Article 30 of the Administrative Litigation Act / [2] Article 2 (1) of the State Compensation Act / [3] Article 2 (1) of the State Compensation Act

[1] Supreme Court Decision 2005Da31828 Decided May 10, 2007 / [2] Supreme Court Decision 94Da36285 Decided December 27, 1994 (Gong1995Sang, 667)

[Judgment of the court below]

Jung-si (Law Firm Site, Attorneys Cho Jong-chul et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2010Na95361 decided December 13, 2011

All appeals are dismissed. The costs of appeal are assessed against each appellant.

The plaintiff and the defendant's grounds of appeal are also examined.

Even if any administrative disposition is revoked after an administrative disposition, it cannot be determined that the pertinent administrative disposition is caused by the intention or negligence of a public official immediately and constitutes a tort by virtue of res judicata, and it is reasonable to deem that the public official in charge of such administrative disposition satisfies the requirements for State liability under Article 2 of the State Compensation Act in a case where it is recognized that such administrative disposition has lost objective legitimacy by neglecting objective duty of care when considering the public official's standard. In such a case, whether it has lost objective legitimacy should be determined by taking into account all the circumstances such as the type and nature of benefit from infringement, the form and reason for the administrative disposition that constitutes infringement, the degree of involvement of the victim in the exercise of the administrative disposition, and the degree of damage, etc. (see Supreme Court Decision 2005Da31828, May 10, 2007, etc.).

In addition, if the content of a public official’s duty imposed on a public official is not merely for the public interest or for the purpose of regulating the internal order of an administrative agency, but entirely or incidentally established to protect the safety and interest of an individual from society members, the State or a local government is liable for damages incurred by the public official’s breach of such duty to the extent that proximate causal relation is acknowledged. In determining the existence of proximate causal relation, the following should be comprehensively taken into account (see Supreme Court Decision 94Da36285, Dec. 27, 1994).

After compiling the adopted evidence, the court below acknowledged the facts as stated in its decision, and found the defendant's rejection disposition against the plaintiff in the market of this case was revoked by a final judgment, and determined that the defendant's public official in charge is liable to compensate the plaintiff for damages equivalent to the above rent of the above building, since there is a proximate causal relation between the defendant's tort and the damages equivalent to the gross real estate tax imposed on the plaintiff in relation to the above illegal act and the land of this case, since the defendant's rejection disposition against the plaintiff in the market of this case was revoked by a final judgment, and thereafter, the defendant's official in charge delayed the second disposition in accordance with the purport of the above judgment and added an illegal father in granting the building permit of this case.

In light of the above legal principles, the court below's measures are just, and contrary to the allegations in the grounds of appeal, the court below exceeded the bounds of the principle of free evaluation of evidence against logical and empirical rules, or did not err by misapprehending the legal principles on proximate causal relation between tort and damage, comparative negligence, etc.

Therefore, all appeals are dismissed, and the costs of appeal are assessed against each appellant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)