[1] In a case where a factory facility is removed and thus it is impossible to operate a factory again, whether there is a legal interest in seeking revocation of the disposition revoking the factory registration (negative in principle), and where there is a legal interest in seeking revocation of the disposition revoking the factory registration even if the factory building is destroyed

[2] Whether an act permitted in the overconcentration control region pursuant to the proviso of Article 20(1) of the former Industrial Cluster Development and Factory Establishment Act includes the relocation of ready-mixed manufacturing factory (affirmative)

[1] Article 12 of the Administrative Litigation Act, Article 17 of the former Industrial Cluster Development and Factory Establishment Act (Amended by Act No. 11690, Mar. 23, 2013); Article 20(1) of the former Industrial Cluster Development and Factory Establishment Act (Amended by Act No. 11690, Mar. 23, 2013); Article 25(4) of the former Enforcement Decree of the Industrial Cluster Development and Factory Establishment Act (Amended by Presidential Decree No. 24442, Mar. 23, 2013); Article 26 subparag. 1 [Attachment Table 1] 3(b); Article 14 [Attachment Table 4] of the former Enforcement Rule of the Industrial Cluster Development and Factory Establishment Act (Amended by Act No. 11690, Mar. 23, 2013)

[1] Supreme Court Decision 2000Du3306 decided Jan. 11, 2002 (Gong2002Sang, 477)

Seoul High Court Decision 200Na14448 delivered on September 2, 2002

The head of Seocho-gu Seoul Metropolitan Government (Law Firm LLC et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2013Nu23678 decided August 29, 2014

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

The grounds of appeal are examined.

1. A lawsuit seeking the cancellation of an illegal administrative disposition is intended to restore the state of illegality caused by the illegal disposition to its original state, and protect or relieve the rights and interests infringed or interfered with such disposition. Thus, even if the disposition is revoked, there is no benefit to seek the cancellation of the disposition (Supreme Court Decision 94Nu5403 delivered on October 25, 1994). Therefore, if the construction of a factory is removed or its restoration is unable to operate the factory again through restoration, etc., it is not subject to the registration of the factory, and even if the act of cancelling the registration of the factory is remaining, there is no legal interest to seek the cancellation of the disposition. However, even if the effective factory registration is in direct and specific interest protected by the relevant Act or other Act due to the registration of the factory, if there is any direct and specific interest protected by the relevant Act or other Act, even if the factory building is destroyed (Supreme Court Decision 200Du306 delivered on January 11, 2002).

2. Based on its stated reasoning, the lower court determined that the instant lawsuit was unlawful on the ground that: (a) the instant factory was removed and destroyed by expropriation; (b) even if the Plaintiff maintained the registration of a factory, it is not possible to operate the factory in the registered site; (c) even if the Plaintiff transferred the factory facilities in the over-concentration control region to outside the region, the benefits of tax reduction and exemption cannot be granted; (d) simple transfer procedures and benefits of preferential occupancy in the case of the relocation of the factory from the overconcentration control region to the inducement zone can be granted without valid factory registration; and (e) there is no legal benefit to maintain factory registration; and (e) there is no need to protect the rights to remove the disadvantage through the revocation lawsuit against the revocation of

3. However, in light of the above legal principles, it is difficult to accept the above judgment of the court below for the following reasons.

A. Review of the reasoning of the lower judgment and the record reveals the following facts.

1) The factory of this case is a ready-mixed manufacturing factory, and the factory of Seocho-gu Seoul Metropolitan Government ( Address 1 omitted) ( Address 1 omitted) is divided into ( Address 2 omitted) and ( Address 3 omitted). The factory of this case is incorporated into the above registration site of June 15, 201, and the factory of this case ( Address 4 omitted), ( Address 5 omitted), ( Address 6 omitted), ( Address 7 omitted), ( Address 8 omitted), ( Address 9 omitted), ( Address 10 omitted), ( Address 12 omitted), and ( Address 12 omitted), and the factory of this case was excluded from the application for approval of the construction of urban planning facility project.

2) Next, on June 29, 2012, the Defendant revoked registration of the instant factory on the ground that the instant factory was removed and demolished pursuant to the foregoing expropriation.

3) Meanwhile, on November 10, 201, a request was filed by the Board of Audit and Inspection for revocation of the disposition of rejection on the ground that the aforementioned disposition of rejection of factory relocation was rejected on November 10, 201. However, on October 31, 2013, a lawsuit was filed against the Defendant for revocation of the said disposition of rejection on December 26, 2013 by the Seoul Administrative Court No. 2013Guhap64769, and was rendered a favorable judgment on October 31, 2014. The Defendant appealed on Seoul High Court No. 2014Nu70282, but the appeal was dismissed on November 27, 2015, and the Defendant’s appeal was dismissed on April 28, 2016 (this Court Decision 2016Du30804).

4) On January 5, 2014, an applicant for the lawsuit filed a motion to resume the lawsuit with the lower court on February 3, 2014, in which the Plaintiff’s receiver was pending in the instant lawsuit.

5) The Seoul Special Metropolitan City, which is the location of three lots of land, such as the site for the registration of the instant factory and the site for approval for the relocation of the factory, constitutes an over-concentration control region under the Seoul Metropolitan Area Readjustment Planning Act.

B. Article 20(1) of the former Industrial Cluster Development and Factory Establishment Act (amended by Act No. 11690, Mar. 23, 2013; hereinafter “Industrial Cluster Act”) provides that “No new construction, expansion, or relocation of a factory of at least 500 square meters in an over-concentration control region under the Seoul Metropolitan Area Readjustment Planning Act shall be allowed, or alteration of a type of business in an overconcentration control region under the Seoul Metropolitan Area Readjustment Planning Act shall be allowed, except in cases prescribed by Presidential Decree as it is deemed inevitable for the development of the national economy and the creation of a living environment for local residents (Article 20(1)). Accordingly, the Enforcement Decree of the same Act (amended by Presidential Decree No. 2442, Mar. 23, 2013; hereinafter “Enforcement Decree”) provides that “the new construction, enlargement, or relocation of a factory falling under attached Table 1” (Article 26 subparag. 1); Article 26 subparag. 31 of the Enforcement Rule of the same Act (amended by Ordinance of the Ministry of Trade, Industry and Energy No. 31).

As above, subparagraph 3 (b) of attached Table 1 of the Enforcement Decree provides that only "new construction" and "extension" or "extension" of a factory of the building material type or existing "extension" are not separately stipulated as an act that can be conducted in the overconcentration control region. However, Article 20 of the Industrial Cluster Act and Article 26 (1) of the Enforcement Decree thereof provide that "transfer of a factory" is already stipulated in Article 25 (4) of the Industrial Cluster Act, and Article 20 (1) of the Enforcement Decree provides that "the "transfer of a factory" means the closure of a factory registered pursuant to Article 16 of the Industrial Cluster Act and the relocation of a factory to another location and the new construction or extension of a factory of the same type of business is inevitably accompanied by the construction or extension of a factory in the overconcentration control region pursuant to the proviso of Article 20 (1) of the Industrial Cluster Act.

However, the main sentence of Article 20(2) of the Industrial Cluster Act provides that "any person who intends to newly build, extend or relocate a factory or change the type of business pursuant to the proviso to Article 20(1) of the Industrial Cluster Act shall obtain approval from the head of a Si/Gun/Gu as prescribed by Ordinance of the Ministry of Knowledge Economy." According to Article 6(1) of the Enforcement Rule, any person who intends to obtain approval for the new construction, extension, relocation or change of a factory or change of the type of business shall submit a written application for approval to the head of a Si/Gun/Gu, along with necessary documents, such as a business plan, etc., to the head of a Si/Gun/Gu who has jurisdiction over the factory location of the previous area prior to the relocation (Article 6(4) of the Enforcement Rule). In addition, the head of a Si/Gun/Gu or management agency having jurisdiction over the factory location of the previous area shall confirm the closure of the relevant factory and issue an existing factory registration certificate after cancelling the relevant factory registration ledger (Article 17(3)1)1) of the Enforcement Rule).

C. Ultimately, considering the above facts in light of the above relevant laws and regulations, the manufacturing industry of ready-mixed is allowed to move in the overconcentration control region, but it is required to confirm whether the previous factory was registered in order to obtain the approval for relocation. Thus, even if the existing factory was removed and cannot be restored again, it is necessary to maintain the previous factory registration in order to obtain the approval for relocation of the existing factory. Therefore, the Plaintiff, who applied for approval for the relocation of the existing factory and disputing the Defendant’s disposition refusing it, should be deemed as having direct and specific interest to seek the revocation of the disposition of this case, regardless of whether the factory was destroyed or lost.

Nevertheless, the lower court determined that there was no legal interest for the Plaintiff to maintain the registration of the factory of this case, and immediately dismissed the Plaintiff’s lawsuit of this case without proceeding to make a judgment on the merits. In so determining, the lower court erred by misapprehending the legal doctrine on the benefit of protection of rights, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal assigning this error

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

Justices Kim Shin (Presiding Justice)