[1] Where a disposition agency ex officio revokes an administrative disposition subject to dispute during the course of a lawsuit seeking nullification or revocation of an administrative disposition, whether an appeal against such disposition is legitimate (negative in principle)

[2] In a case where a subsequent disposition is made to revise the contents of the prior disposition, whether the validity of the prior disposition exists

[3] In a case where a law, which forms the basis of a beneficial administrative disposition such as license, authorization, or permission, is aimed at preventing unreasonable management arising from excessive competition among the relevant business entities, whether there is a benefit to seek confirmation or revocation of the beneficial administrative disposition such as license, authorization, or permission, etc., against the relevant business entity, which is conducted by the existing business entity subject to the beneficial administrative disposition such as license, authorization, or permission, etc. (affirmative) / Whether there is a benefit to seek confirmation or revocation of the administrative disposition against the relevant business entity where the administrative disposition against the ordinary business entity is disadvantageous to the ordinary business entity

[4] Where a judgment revoking an administrative disposition becomes final and conclusive, the duty of the administrative agency pursuant to the binding force of the judgment revoking the administrative disposition

[1] The interest in a lawsuit seeking confirmation or revocation of an administrative disposition must be determined by taking into account individual and specific circumstances. Even if a lawsuit seeking confirmation or revocation of an administrative disposition has a legal interest in the lawsuit at the time of the lawsuit, if the disposition agency ex officio revokes an administrative disposition which is the object of dispute during the duration of the lawsuit, the disposition becomes null and void and no longer exists. Therefore, an appeal litigation against a non-existent disposition should, in principle, be deemed null and void

However, in cases where there exists another right or interest that can be recovered by nullification or cancellation, or where it is necessary to explain legal issues of which illegality is verified or unclear because illegal disposition is likely to be repeated for the same reason as that of the administrative disposition among the parties to the same lawsuit because the disposition is not completely restored even if the disposition is revoked ex officio, the benefit of lawsuit seeking revocation of the disposition can be exceptionally acknowledged in terms of ensuring legality of the administration, judicial control thereon, expansion of citizens' rights, etc.

[2] Where a subsequent disposition is made with a substantial modification of the main part of the prior disposition, the prior disposition shall lose its effect unless there are special circumstances. However, where the subsequent disposition is merely a minor modification of only a part of the contents of the prior disposition, the prior disposition shall not be extinguished, and it shall continue to exist within the extent that it is not modified

[3] In a case where the Act, which is the basis of the beneficial administrative disposition such as license, authorization, or permission, aims to prevent unreasonable management due to excessive competition among the pertinent enterprisers, the existing enterpriser, who is engaged in a business after obtaining prior administrative disposition such as license, authorization, or permission, etc., of the same kind from other enterprisers, has a benefit to seek nullification or revocation of the pertinent administrative disposition even though it is not the other party to the administrative disposition such as license, authorization, or permission, etc., which was taken against the competitor. However, if the administrative disposition against the competitor is disadvantageous to the competitor, the existing enterpriser in competition is favorable unless there are special circumstances. Therefore, the existing enterpriser has no benefit to seek nullification or revocation of such administrative disposition.

[4] When a judgment revoking a certain administrative disposition becomes final and conclusive, the administrative agency is obligated to take measures again or to remove other unlawful results under the condition that the grounds for illegality confirmed in the judgment were excluded from the binding force of the revocation judgment.

[1] Articles 12 and 35 of the Administrative Litigation Act / [2] Article 1 of the Administrative Litigation Act / [3] Articles 12 and 35 of the Administrative Litigation Act / [4] Article 30 of the Administrative Litigation Act

[1] Supreme Court en banc Decision 2006Du19297 Decided September 28, 2006 (Gong2006Ha, 1833), Supreme Court en banc Decision 2006Du19297 Decided July 19, 2007 (Gong2007Ha, 1291), Supreme Court Decision 2013Du1638 Decided June 10, 2016 (Gong2016Ha, 938) / [2] Supreme Court Decision 2010Du20782, 20799 (Gong2013Sang, 164) / [3] Supreme Court Decision 2015Du53824 Decided April 26, 2018 (Gong2018Du538385 decided May 28, 2015) / [3] Supreme Court Decision 2018Du53885 decided May 13, 2018

Korea Forest Shipping Co., Ltd. (Bae LLC, Attorneys Kim Nung-hwan et al., Counsel for the defendant-appellant)

The head of the Incheon Coast Guard (Law Firm Sejong, Attorneys Park Sung-won et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2018Nu63312 decided June 27, 2019

Of the lower judgment, the part of the lower judgment regarding the claim for nullification of the primary claim against the change of the license to engage in the ferry business as of September 3, 2018 is reversed, and that part of the lawsuit is dismissed. The Defendant’s appeal and the Plaintiff’s remaining appeals are dismissed, respectively.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Case summary and key issue

A. The reasoning of the lower judgment reveals the following circumstances.

1) 세종해운 주식회사(이하 ‘세종해운’이라고 한다)는 1999. 3. 4.경 피고로부터 구 「유선 및 도선사업법」(2008. 6. 5. 법률 제9095호로 개정되기 전의 것) 제3조 등에 따라 인천 중구 ○○동 △△도와 인천 옹진군 □□면 ◇도 및 ☆☆도에 각 도선장을 두고 영업구역으로 ‘중구 ○○동 △△도~옹진군 □□면 ◇도(1.8km)~옹진군 □□면 ☆☆도(6.5km)’(이하 ‘이 사건 항로’라고 한다)에 도선을 운항하는 내용의 도선사업면허(사업기간: 1999. 3. 4.~영구)를 받았고, 이후 면허사항을 일부 변경하는 내용의 도선사업면허 변경처분을 여러 차례 받았다(이하 2017. 4. 6. 당시까지 변경되어 유효한 면허의 내용을 ‘기존 도선사업면허’라고 한다).

2) As the age of the ▽▽▽▽△△ (319t, 394 people) operated on the instant sea route has deteriorated in 20 years, on April 6, 2017, the Defendant filed an application with the Defendant for a change to the existing ferry business license with the content of replacing the ▽▽▽▽▽▽▽▽▽△ (715t, 504 people) that was a new large vessel, which was already previously licensed, to the Defendant on April 12, 2017, and the Defendant accepted the application and issued a disposition to change the license for the ferry business on April 12, 2017 (hereinafter “the first changed disposition”).

3) On the instant sea route, the Plaintiff engaged in marine passenger transport services in accordance with the Marine Transport Act and subsequently became aware of the fact that the first revised disposition was issued with respect to the Sejong Shipping, the Plaintiff asserted on December 14, 2017 that the first revised disposition should be revoked because it violated the Plaintiff’s business right of marine passenger transport services.

4) The first instance court accepted the Plaintiff’s assertion, and determined that the first instance court’s order did not cause the alteration of the number of the vessels operated by Sejong Shipping on the instant sea route, but it was unlawful by significantly increasing the number of the vessels, thereby infringing the Plaintiff’s maritime passenger transport business rights. The first instance court sentenced the revocation of the first instance order on August 16, 2018.

5) Accordingly, in order to maintain the purport that, while removing the unlawful elements pointed out by the judgment of the court of first instance and replacing the aged ▽▽▽△△△ number as a new dedicated unit, the Defendant, on August 31, 2018, filed an application with the Defendant for a change in the license for the ferry business with the content that, while maintaining the different contents of the first change from the previous 504 number, the number of dedicated units is less than 393 persons, which is less than 394 persons, prior to the execution of the first change from the previous 504 number, and the Defendant received the same on September 3, 2018 (hereinafter “second change disposition”).

6) The Defendant appealed, and the validity of the first alteration disposition has ceased to exist due to the second alteration disposition, and the Plaintiff did not have any interest in filing a lawsuit to seek revocation of the second alteration disposition, and the second alteration disposition was deemed legitimate, as it was removal of illegal elements pointed out by the first instance judgment due to the second alteration disposition. Accordingly, the Plaintiff added the purport of the claim to seek revocation as to the second alteration disposition on February 26, 2019, which was pending in the appellate trial of this case, to the effect that the Plaintiff primarily files a claim for nullification and revocation.

7) The lower court determined that: (a) the second alteration disposition is merely a change in the prescribed number of the first alteration disposition, and thus, it cannot be deemed that the first alteration disposition is extinguished; and (b) the second alteration disposition and the second alteration disposition are the subject of appeal litigation, respectively; and (c) although the second alteration disposition reduces the prescribed number of the dedicated to the second alteration and lowers the number of the number of persons dedicated to the second alteration, it still infringes the Plaintiff’s maritime passenger transport business right since the tonnage and maximum loading weight of the ferry operating on the instant service route due to the first alteration, other than the prescribed number of persons dedicated to the second alteration, and thus, the first alteration disposition after the reduction in the prescribed number of the dedicated to the second alteration is still unlawful; and (c) the second alteration claim against the second alteration is dismissed on the ground that there is no serious and apparent defect in the second alteration disposition; and (d) the second alteration claim against the second alteration disposition is dismissed on the ground that the Plaintiff’s second alteration disposition and the second alteration claim against the second alteration disposition were unlawful.

B. The key issue of the instant case is whether the part concerning the claim for revocation of the first disposition of the instant lawsuit was with the lapse of the filing period, or is unlawful due to the extinguishment of the benefit of the lawsuit, and whether the primary and preliminary claim against the second disposition of the instant lawsuit is unlawful as there is no benefit of lawsuit.

2. As to the second disposition of change (the Plaintiff’s ground of appeal)

A. Relevant legal principles

1) The interest in a lawsuit seeking confirmation or revocation of an administrative disposition ought to be determined by taking into account individual and specific circumstances. Even if a lawsuit seeking confirmation or revocation of an administrative disposition has a legal interest in the lawsuit at the time of the lawsuit, if the disposition agency ex officio revokes the administrative disposition which is the object of dispute during the duration of the lawsuit, the disposition becomes null and void, and no longer exists. Therefore, an appeal litigation against the non-existent disposition should, in principle, be deemed unlawful on the ground that the interest in the lawsuit is extinguished (see Supreme Court Decision 2004Du5317, Sept. 28, 200

However, in cases where there exists another right or interest that can be recovered by nullification or cancellation of a disposition disposition, or where there exists a risk of repeating an illegal disposition due to the same cause as that of the relevant administrative disposition among the parties to the same lawsuit, and thus it is necessary to explain legal issues, such as confirmation of illegality of the administrative disposition, judicial control thereon, and expansion of citizen's remedies, the benefit of lawsuit seeking revocation of the disposition can be exceptionally acknowledged (see, e.g., Supreme Court en banc Decision 2006Du19297, Jul. 19, 2007; Supreme Court Decision 2013Du1638, Jun. 10, 2016).

2) Where a subsequent disposition is rendered with a substantial change in the main part of the prior disposition, the prior disposition becomes void unless there exist special circumstances. However, where the subsequent disposition is merely a minor change in part of the content of the prior disposition, the prior disposition shall not be extinguished, and it shall continue to exist within the extent not modified by the subsequent disposition (see, e.g., Supreme Court Decision 2010Du20782, 20799, Dec. 13, 2012).

3) In cases where the Act, which is the basis of the beneficial administrative disposition, such as license, authorization, or permission, generally aims at preventing unreasonable management due to excessive competition among the relevant enterprisers, the existing enterprisers, who are engaged in a business after having received the same kind of license, authorization, or permission, or other beneficial administrative disposition in advance, with respect to other enterprisers, have a benefit to seek confirmation or revocation of such administrative disposition even though they are not the other party to such administrative disposition (see Supreme Court Decision 2015Du53824, Apr. 26, 2018, etc.). However, if the administrative disposition against the competitor is disadvantageous to the competitor, the existing enterprisers in competition are favorable to the competitor, barring special circumstances, and thus, there is no benefit to seek confirmation or revocation of such administrative disposition.

B. Determination on the instant case

We examine the above facts in light of the aforementioned legal principles.

1) The second alteration disposition does not completely replace the first alteration disposition or substantially change its main part, but is merely a reduction of part of the fixed number of the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the preceding alteration.

2) The second alteration is a disposition that the Defendant ex officio revokes part of the number of chip chip chip, among the first alteration dispositions, and thus falls under the subject of an appeal litigation. However, the part of the first alteration of the number of chip chip chip chip chip chip chip chip chip chip chip chip chip chip chip chip chip chip chip chip chip chip chip chip chip chip chip chip chip chip chip chip chip chip chip chip chip chip chip chip chip chip chip chip.

3) Nevertheless, on the premise that the Plaintiff has a legal interest in seeking a nullification or revocation of the second modified disposition, the lower court dismissed the Plaintiff’s claim on this part of the claim as to the claim for invalidity confirmation as to the second modified disposition. In so determining, the lower court erred by misapprehending the legal doctrine on the interest in an appeal litigation, thereby adversely affecting the conclusion of the judgment. The Plaintiff’s ground of appeal assigning this error is with merit.

4) Examining the record in light of the relevant legal principles, it is acceptable that the lower court dismissed the claim for revocation of the second preliminary disposition on the ground that the period for filing the lawsuit was elapsed. In addition, even if the period for filing the lawsuit was observed, it did not affect the conclusion of the judgment, since it did not have been dismissed as there was no benefit

3. As to the first disposition of change (the Defendant’s ground of appeal)

A. Whether the period for filing a lawsuit is expired

The lower court determined that: (a) from April 12, 2017 to April 12, 2017, it is difficult to readily conclude that the Plaintiff was aware of the fact that Sejong Shipping commenced the operation of dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated

Examining the records in light of the relevant legal principles, we affirm the judgment below. Contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles regarding the period of filing a lawsuit seeking revocation, or by exceeding the bounds

B. Whether the interest in the lawsuit is recognized

1) As seen earlier, the second alteration is not entirely replaced with the first alteration disposition or substantially changing its main part, but it is merely limited to the reduction of part of the prescribed number of the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the 2nd alteration. In other words, the fact that the ▽▽△△△ number of 319t new type 715t is replaced with the dedicated to the dedicated to the dedicated to the

The judgment below to the same purport is just, and there is no error by misapprehending the legal principle regarding the interest in the lawsuit or by misapprehending the reasoning.

2) If the part of the judgment of the court below in the instant case revoking “the part remaining without being revoked by the second alteration of the first alteration disposition” becomes final and conclusive, the legal basis for operating the dedicated unit becomes final and conclusive on the instant sea route as a ferry. Therefore, the second alteration disposition that only regulates the fixed number of the dedicated unit for the dedicated unit for the dedicated unit for the dedicated unit for the dedicated unit for the dedicated unit for the dedicated unit for the dedicated unit for the dedicated unit for the dedicated unit for the dedicated unit for the dedicated unit for the dedicated unit for the dedicated unit for the dedicated unit for the dedicated unit for the dedicated unit for the dedicated unit for the dedicated unit for the dedicated unit for the dedicated unit for the dedicated unit for the dedicated unit for the dedicated unit for the dedicated unit for the dedicated unit for the dedicated unit for the dedicated unit for the dedicated unit for the dedicated unit for the dedicated unit for the dedicated unit for the dedicated unit for the dedicated unit for the dedicated unit.

4. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal by the Plaintiff, the part concerning the claim for nullification of the primary disposition of the second modification of the judgment of the court below is reversed, but this part of the case is sufficient for the Supreme Court to directly render a judgment. Accordingly, this part of the lawsuit in this case is dismissed. The Defendant’s appeal and the remaining appeals by the Plaintiff are dismissed, respectively, and the total costs of the lawsuit are to be borne by the Defendant under Article 8(2) of the Administrative Litigation Act and Articles 101 and 105 of the Civil Procedure Act. It is so decided as per Disposition by the assent of all participating

Justices Kwon Soon-il (Presiding Justice)