(영문) 대법원 2015.9.10.선고 2014두76 판결

1. The revocation or withdrawal of a beneficial administrative act may be allowed only when it is necessary for the public interest of the parties or for the protection of a third party’s interests to the extent that it would justify the infringement of the other party’s vested interests (see, e.g., Supreme Court Decision 2011Du2732, Mar. 15, 2012).

2. After the Defendant issued a building permit for the instant power plant to the Plaintiff, the lower court revoked the instant provisional disposition that revokes the said provisional disposition on building permit on the grounds that the direct environmental damage is anticipated to occur to neighboring housing prices and Taeduk Special Research and Development Zone. The lower court determined that the instant provisional disposition was lawful on the ground that the environmental damage constitutes a serious public interest necessity to justify the disadvantage that the Plaintiff would suffer due to the instant provisional disposition on the ground that the environmental damage

3. However, the above judgment below is hard to accept for the following reasons.

A. According to the records, the Plaintiff acquired relevant real estate including the site of the instant power plant after receiving the above building permit disposition. The Plaintiff, who acquired the ownership of the said real estate, trusted the above building permit disposition and acquired the ownership of the said real estate, suffers a disadvantage that the said real estate could not be used as originally intended. In light of the purpose of acquiring the said real estate and its acquisition value, it is difficult to view that the above disadvantage of the Plaintiff is small in light of the purpose of acquiring the said real estate.

B. Nevertheless, the lower court, based on the 2010 Formula test that the air pollution in neighboring areas may have an impact on air pollution, states that the disposition of the building permit is necessary for the public interest to revoke the disposition of the above building permit because the air pollution level and the degree of damage to neighboring residents and residents and persons related to Taeduk Special Research and Development Zone are not specified. Therefore, it is difficult to confirm whether the lower court’s aforementioned judgment is necessary for public interest. In addition, although the lower court determined that the purport of the relevant provision that limits the use of solid fuels in the special zone is considerably damaged if the power plant of this case using solid fuels is operated in an adjacent area to the special zone, it is difficult to find the ground for determination as seen above, even if the environmental damage caused by the operation of the power plant of this case is not verified in detail. Rather, the lower court did not err by misapprehending the legal doctrine on the disposal of air pollutants anticipated to have been discharged at the time of the power plant, but it is difficult to view that the lower court did not have any other objective reason to deem the Plaintiff’s disposition of the above.

4. Therefore, without examining the remaining grounds of appeal, we reverse the judgment of the court below, and remand the case to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.