In a case where: (a) the head of the competent Si/Gun/Gu issued a disposition to permit the use of the underground parking lot and the ground building, which are urban planning facilities, and then received a disposition to grant the permission for the extension of the free use period; (b) and (c) the Company A leased and used the building; and (d) filed a lawsuit seeking the cancellation of a certain period for which the extension of the free use period has been refused during

In a case where the competent Mayor completed and donated underground parking lots and ground buildings, which are urban planning facilities, and then received permission for the use of facilities, but then received permission for the extension of the period of free use, and the company Eul, which leased and used the building, filed a lawsuit seeking revocation of the partial period refused to extend the period of free use during the above disposition, the case holding that Eul company has no standing to sue since there is no legal interest to seek revocation of the disposition, in full view of the following: (a) the applicant for the extension of the period of free use and the permission for the extension of the period of free use; (b) the applicant for the extension of the period of free use to the competent Mayor; and (c) the applicant for the extension of the period of free use to the Mayor; and (d) the extension of

Article 12 of the Administrative Litigation Act, Articles 7(2), 20 and 21 of the Public Property and Commodity Management Act

Embreat Co., Ltd. (Law Firm Squat, Attorneys Song-yeong et al., Counsel for the plaintiff-appellant)

Seoul Special Metropolitan City Mayor (Attorney Han Han-soo, Counsel for the defendant-appellant)

Seoul Police Agency Decision 2013Guhap60163 decided April 11, 2014

October 7, 2014

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

In the first place, the Defendant’s refusal to extend the period from September 2, 2016 to February 8, 2018, among the dispositions for permission for extension of the period of free use made against Dongbu Construction Co., Ltd. as of July 5, 2013, shall be revoked. In the second place, the Defendant’s disposition for extension of the period of free use made against Dongbu Construction Co., Ltd. as of July 5, 2013 is revoked.

2. Purport of appeal

The same shall apply to the order.

1. Basic facts

The court's explanation on this part is consistent with the reasoning of the judgment of the court of first instance, except for the case where the 8-party No. 1 or No. 4 of the judgment of the court of first instance was replaced by "A," and therefore, this part's explanation is accepted by Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

On June 3, 2013, “The Committee recommended the Defendant to promptly extend the period of suspension of construction due to a reason attributable to the Defendant’s liability pursuant to Article 21(2) of the Public Property and Commodity Management Act (amended by Act No. 1006, Feb. 4, 2010).”

2. Judgment on the main defense of this case

A. The defendant's main defense

As to the Plaintiff’s petitioning for revocation of the entire disposition of this case, the part of the period of refusal of extension of the period of free use (from September 2, 2016 to February 8, 2018) and the conjunctive construction, the Defendant asserts that the instant disposition was unlawful since the other party to the disposition of this case is merely a lessee who leased and used the instant building from the construction of the building, and there is no legal interest to seek revocation of the disposition of this case. Thus, the instant lawsuit is filed by a non-party to standing to sue.

B. Determination

1) A revocation suit under the Administrative Litigation Act may be instituted by a person who has a legal interest in seeking the revocation of a disposition (Article 12 of the Administrative Litigation Act). Thus, even if a third party who is not the other party to an administrative disposition has a legal interest in seeking the revocation of the relevant administrative disposition, the revocation of the disposition may be sought. In this case, the legal interest refers to a specific interest directly protected by the law based on the relevant disposition. Therefore, in a case where a third party has an indirect economic interest, there is no standing to sue seeking the revocation of the disposition (see, e.g., Supreme Court Decisions 93Nu24247, Apr. 12, 1994; 97Nu1337, Feb. 8, 2000).

2) Therefore, as to whether there is a legal interest in seeking revocation of the whole or part of the instant disposition, it is merely a health zone, a permit to implement the construction of an existing parking lot, a permit to use without compensation, an initial permit to extend the building of this case on the ground, a permit to alter the construction of the instant building from July 9, 1993 to July 8, 2013, and the permit to use the instant disposition extended from July 1, 2016 to September 1, 2016. The other party to the instant disposition is both Dongbu Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation Corporation.

Furthermore, as seen earlier, as long as the Dongbu Construction, the other party to the instant disposition, expressed clearly to the Defendant on June 19, 2013 that he/she would accept the instant disposition by extending the said period of free use from July 9, 2013 to September 1, 2016, it is difficult to view that there is any legal interest to allow the Plaintiff, which is merely an indirect interest in the instant disposition, to file a lawsuit to reverse the intention of the party to the instant administrative disposition.

3) As to this, the Plaintiff promoted the extension of the building of this case jointly with the construction of the building of the building of this case, the external title is the building of the building of this case and the construction of the building of the building of this case is in actual relationship with the Plaintiff, such as that the Plaintiff is responsible for the performance of the relevant authorization and permission, and the construction cost is also borne by the Plaintiff. In the lease agreement entered into with the building of the building of this case, the term of lease is determined by the end date of the Defendant’s gratuitous use permission, and the Plaintiff has a direct interest in the period of free use, and the building of this case was newly constructed to operate the construction of the building of this case. The Plaintiff is also the Plaintiff and the employees of the Plaintiff had been aware of the fact that they had been frequently consulted with the Defendant’s employees from time to time, and the Defendant also knew that the Plaintiff is the actual owner of the fashion project of the building of this case, and the Defendant’s gratuitous use condition of the building of this case also includes a copy of the contract within seven days after the act.

However, even if the Plaintiff agreed to jointly carry out the building extension and fashion project of this case between the Plaintiff and the Dong Construction and actually carried out the same business relationship, it is merely an internal relationship between the Plaintiff and the Dong Construction, and the project implementer is a Dong Construction and all dispositions, including the instant dispositions, have been carried out as a party to the Dong Construction as seen earlier, and the Plaintiff was aware of the fact that the Plaintiff actually carried out the building of this case and promoted the fashion project, and even if the terms and conditions of the Defendant’s gratuitous use condition or the condition of the authorization for the change of the use permit of this case, it cannot be deemed that the Defendant immediately viewed the Plaintiff as the party to the disposition or the party corresponding to the other party to the disposition, and the Plaintiff cannot be deemed to have carried out the original authorization disposition, the instant gratuitous use permit disposition, and the instant disposition. Even if the Plaintiff’s extension of the lease term by the Defendant’s permission for the extension of the free use period, it is an indirect and economic interest arising from the lease agreement, and the Plaintiff’s assertion that the disposition of this case directly affects the other party cannot be justified.

4) Ultimately, the Plaintiff does not have standing to sue since there is no legal interest to seek revocation of part or whole of the instant disposition. Thus, the instant lawsuit is unlawful as it was filed by a person who has no standing to sue. The Defendant’s main defense to safety is with merit.

3. Judgment on the merits (preliminary judgment)

A. The plaintiff's assertion

1) The purport of the judgment that became final and conclusive in a lawsuit seeking the revocation of the initial refusal disposition against the Defendant, which was brought by the said sub-construction, was that the said sub-construction could not use the same for a period of four years and seven months due to the Defendant’s fault, and thus, the said sub-construction has the right to seek an extension of the period of free use for the four years and seven months, and that the Defendant’s refusal thereof is unlawful. Therefore, in accordance with the purport of the final and conclusive judgment, the Defendant is obligated to make a re-disposition that permits the extension of the period of free use for the entire four years and seven months, which were the initial application period. Nevertheless, the Defendant rejected the instant disposition from September 2, 2016 to February 8, 2018 while making the said sub-construction’s initial extension application (hereinafter “instant refusal disposition”), and the instant refusal disposition was unlawful as against the duty of re-disposition based on the binding force of the final and conclusive judgment

2) In addition, according to Article 21(4) of the Public Property and Commodity Management Act (hereinafter “Public Property Act”), where the use of property is restricted due to a cause attributable to an administrative agency, the administrative agency may extend the period of permission. The extension of the period of permission is interpreted as “the whole period of use or profit-making,” and it is apparent that the period of free use from May 9, 2000 to December 8, 2004, which is the date of the original approval disposition due to a cause attributable to the defendant, has been reduced for four years and seven months from the date of the original approval disposition, which is the date of the original approval disposition, and there is no need to determine otherwise in light of the purport of the relevant precedents, and it is virtually impossible for the defendant to recognize the extension of the period of free use as short as four years and seven months. Nevertheless, the defendant's original decision to revoke or revoke part of the beneficial administrative act conducted against the plaintiff, which constitutes a violation of Article 21(4) of the Public Property Act or an additional disposition to refuse the use of public property.

B. Determination

1) Determination on the Plaintiff’s first argument

On the other hand, according to the binding force of the above final judgment, the plaintiff asserts that the defendant is obligated to make a second disposition that permits the extension of the whole period of 4 years and 7 months, which is the initial application period of dong Construction, according to Gap evidence 9-1 through 5. However, according to the above final judgment's purport, the above final judgment is, in principle, discretionary action of the office of administration as to the application for extension of the period of use and profit-making of administrative property under the Public Property Act. However, from October 15, 2001 where the defendant issued a disposition for modification of urban planning facilities (parking), three years and 24 months from October 15, 2004 where he intentionally issued the disposition for modification of urban planning facilities (parking), and it is reasonable that the defendant intentionally continued to make an extension of the period of use of dong Construction for the whole period of 4 years and 7 months. Thus, the plaintiff's original rejection disposition is unlawful because it does not deviate from the original discretion, and it does not violate the plaintiff's obligation to extend the whole period of 7 years.

2) Judgment on the second argument by the Plaintiff

A) Article 21(4)2 of the Public Property Act provides, “The head of a local government may extend the period of permission where a person who has obtained permission for use or profit-making has been subject to a restriction on the use of the property due to a cause attributable to the relevant local government. In this case, the period of permission to be extended shall be within the scope of the period which is not available or profit-making due to the cause attributable to the said local government.” In light of the purport or content of the above provision, the granting of permission to apply for extension of the period of use or profit-making of administrative property or the specific extension period thereof shall be deemed to fall under the discretionary act of the management agency. Thus, even if the management agency did not refuse an application for extension of the period of permission or extend the period which has not been used or profit-making whole, it shall not

B) In addition, comprehensively taking account of the following circumstances acknowledged by the above facts, including Gap evidence Nos. 11 and Eul evidence Nos. 9 through 11 (including provisional numbers) and the overall purport of pleadings, the defendant appears to have issued the instant disposition of refusal by considering the defendant's reasons attributable to the defendant, such as the period during which Dongbu Construction was unable to use the building of this case, the period necessary to recover the investment amount of Dongbu Construction, and the opinion of Dongbu Construction as to the extension of the permission period, and the instant disposition of refusal is not deemed to have violated Article 21 (4) of the Public Property Act, or has abused or abused discretion. The plaintiff's assertion on this part is

① In light of the fact that the Defendant continued to make several illegal and unfair dispositions to block the instant building extension project for which the building was to be implemented, it is not likely that the building was unable to be used due to the Defendant’s fault for four years and seven months from May 9, 2000, which was the date of the original authorization disposition, until December 8, 2004, which was the date of the original authorization disposition, but the said period includes the period from May 9, 2000, which was the date of original authorization disposition to March 15, 2001, which was the date of original authorization disposition, and thus, it cannot be readily concluded that the period for which the Defendant could not be used due to the cause attributable to the Defendant is four years and seven months.

② The Plaintiff argues that a short extension of the period of permission is de facto cancellation or withdrawal of part of the beneficial administrative act. However, as seen above, the extension of the period of permission is the discretionary act of the management agency, and the disposition of this case is an extension of the period of permission after the expiration of the existing period of permission and does not cancel the existing period of permission. Thus, it cannot be deemed partial cancellation or withdrawal of the beneficial administrative act.

③ The Defendant’s decision of revocation of the initial refusal disposition was about nine months after the Supreme Court became final and conclusive on October 11, 2012. However, the main reason for the delay of the instant refusal disposition is that the Defendant’s refusal or submission of the existing parking lot and the import and expenditure outlook data on the instant building is mainly attributable to the delay of the construction of the said sub-construction even though the Defendant requested the construction of the said sub-construction.

④ According to the existing parking lot submitted by the building construction and the revenue and expenditure outlook data for the operation of the building of this case (No. 10 and No. 11) the building of this case was anticipated to increase profits exceeding KRW 5.2 billion when the building of this case is used for free by 2016. Accordingly, on June 19, 2013, the building construction of this case notified the Defendant of the purport that the period of free use of the building of this case will be extended by September 1, 2016.

4. Conclusion

Therefore, the lawsuit of this case is dismissed as it is unlawful, and the judgment of the court of first instance is unfair with different conclusions, so it is revoked by accepting the defendant's appeal, and it is so decided as per Disposition.

Judges Lee Young-chul (Presiding Judge)