[1] Whether there is a benefit to seek revocation of a permit where a building permit was completed with a building permit (negative), and whether the same applies to cases where a building work was completed before the date of closing argument in the fact-finding court after filing a lawsuit (affirmative)

[2] Whether the owner of a neighboring house damaged during the construction of a building has a legal interest in seeking revocation of the pre-use inspection disposition for the new building (negative)

[1] Article 18 of the Building Act, Article 12 of the Administrative Litigation Act / [2] Article 18 of the Building Act, Article 12 of the Administrative Litigation Act

[1] Supreme Court Decision 93Nu20481 delivered on January 14, 1994 (Gong1994Sang, 738) / [1/2] Supreme Court Decision 87Nu98 delivered on May 12, 1987 (Gong1987, 1009) Supreme Court Decision 93Nu1398 delivered on November 9, 1993 (Gong1994Sang, 100) Supreme Court Decision 96Nu9768 delivered on November 29, 196 (Gong197Sang, 213)

Plaintiff (Law Firm Barun, Attorneys Park Jae-hwan)

The head of Seocho-gu Seoul Metropolitan Government (Attorney Shin Jae-gil, Counsel for defendant)

Intervenor 1 and eight others (Attorney Yoon Young-young et al., Counsel for the intervenor-appellant)

Seoul High Court Decision 2005Nu2805 delivered on October 20, 2006

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. As to the request for cancellation of a building permit, a building permit, and a modified disposition

A lawsuit seeking the cancellation of an illegal administrative disposition is to restore to the original state, protect or relieve the rights and interests infringed or interfered with the disposition by excluding the state of illegality caused by the illegal disposition. Thus, even if the disposition is revoked, there is no benefit to seek the cancellation of the construction permit if it is impossible to restore to the original state, and if the construction work is completed in accordance with the construction permit, there is no benefit to seek the cancellation of the construction permit (see Supreme Court Decision 96Nu9768 delivered on November 29, 1996). As such, there is no benefit to seek the cancellation of the construction permit disposition, where the construction work is completed before filing a lawsuit seeking the cancellation of the construction permit (see Supreme Court Decision 93Nu20481 delivered on January 14, 1994). This also applies to the case where the construction work is completed before the date of the closure of the fact-finding trial proceedings after filing a lawsuit (see Supreme Court Decision 87Nu98 delivered on May

In the same purport, the court below determined that the plaintiff has no interest in seeking the cancellation of the building permit disposition and the building permit modification disposition, even if the plaintiff submitted a false design drawing at the time of applying for the building permit, or the construction work was completed before the closing date of argument in the court below after filing a lawsuit seeking the cancellation of the building permit. There is no error in the misapprehension of legal principles as to the cancellation of the building permit disposition and the building permit modification disposition as otherwise alleged in the ground of appeal.

In addition, Supreme Court Decision 90Nu7760 Decided August 23, 1991, which is pointed out in the ground of appeal, is a case seeking the cancellation of a disposition of cancellation of a building permit, which is rendered before the completion of the construction work, and it is not appropriate to invoke the case differently

In addition, the court below, based on the adopted evidence, acknowledged the fact that the supplementary intervenor carried out the interior works of the 5th and the 6th floor of the building in this case during the period of the suspension of construction in accordance with the provisional disposition of the suspension of construction, and judged that the above interior works have a significant impact on the completion of the construction works in this case, so long as the construction works in this case are completed, the plaintiff cannot be deemed to have a benefit to seek the cancellation of the disposition of the construction permit and the permission of the modification of the construction permit. In light of the above legal principles and records, the court below's findings of

2. As to the cancellation of the approval of use

The disposition to approve the use of a building is merely creating a legal effect that enables a person who has obtained permission to use or benefit from a building constructed by confirming whether the building conforms to the purpose of the construction administration and issuing a written approval for use according to the matters of the building permission. In the event that a building infringes on the rights of the owner of a neighboring house, it does not justify such infringement. In addition, even if the owner of a neighboring house suffered damage to his/her house in the process of constructing the building, such damage can be recovered in monetary compensation. Infringement of the right to enjoy sunshine and other living benefits in the living environment can be restored or protected by the removal of the whole or part of the building. Even if the disposition to approve the use of the building is revoked, the owner is merely unable to use the building lawfully and thus returned to the situation prior to the approval for use. Thus, it is determined by a reasonable judgment of the administrative agency. Thus, even if the building is not maintained and the owner of a neighboring house was damaged in the process of constructing the building, it cannot be deemed that there is legal interest in the approval for use of the neighboring building.

In the same purport, the decision of the court below that even if the building in this case was constructed in violation of the restriction on the height of the building and infringed on the plaintiff's right to enjoy sunshine, the plaintiff as the owner of neighboring house does not have any interest in seeking the cancellation of the approval of use in this case is just, and there is no error of law such as misunderstanding

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Hwang-sik (Presiding Justice)