Whether there is a standing to sue and a legal interest to seek revocation of a rejection disposition against a person who has failed to obtain a disposition, such as permission, in cases where multiple persons who have applied for a beneficial administrative disposition, such as authorization and permission, are in a critical relationship with each other

A number of persons who have applied for a beneficial administrative disposition, such as authorization and permission, are bound to result in a decision of rejection against others on the grounds of non-permission of the same person. In principle, those who have not received a disposition such as permission, etc. shall be standing to seek revocation of the disposition of rejection against themselves as the direct counter-party to the disposition of rejection against the application. Where a decision of revocation becomes final and conclusive, the administrative agency shall re-examine whether the requirements for disposition are satisfied with respect to each of the plaintiff and the plaintiff of the revocation judgment and the plaintiff of the revocation judgment while excluding the illegal grounds identified in the judgment based on the binding force of the revocation judgment, and as a result, it cannot be ruled out that the beneficial disposition against the plaintiff of the revocation judgment is revoked ex officio and the possibility that the beneficial disposition against the plaintiff of the revocation judgment will be made, barring any special circumstances, there are interests in filing a lawsuit to seek revocation of the disposition of rejection against the plaintiff.

Article 12 of the Administrative Litigation Act

Plaintiff (Law Firm Multirate, Attorneys Kim Yong-mun et al., Counsel for the plaintiff-appellant)

The head of Gangseo-gu Busan Metropolitan Government (Seoul General Law Firm, Attorney Kim Ho-ho, Counsel for defendant-appellant)

Busan High Court Decision 2013Nu1690 decided December 4, 2013

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

The grounds of appeal are examined.

1. A lawsuit seeking the cancellation of an illegal administrative disposition is intended to restore to the original state by removing the illegal state caused by the illegal disposition, and to protect and relieve the rights and interests infringed or interfered with the disposition. Thus, even if the illegal disposition is revoked, if it is impossible to restore it to the original state or to remedy the infringement, there is no benefit to seek the cancellation (see Supreme Court Decision 2004Du13219, Jul. 28, 2006, etc.). However, the benefit of the lawsuit is not recognized only where the possibility of remedying the rights and interests

A number of persons who have applied for a beneficial administrative disposition, such as authorization and permission, are bound to be decided by the non-permission, etc. of the other persons in the border relationship. A person who has not received a disposition such as permission, etc. shall, in principle, be standing to seek the revocation of the disposition of refusal against him/her as the direct counter-party to the disposition of refusal against the application. Where a judgment of revocation becomes final and conclusive, even though the disposition of permission, etc. against the principal is revoked or its validity is not extinguished directly due to the direct effect of the judgment, the administrative agency is obligated to re-examine whether the requirements for disposition are satisfied with regard to each request of the plaintiff in the judgment of revocation and the police officer while excluding the grounds identified in the judgment in accordance with the binding force of the judgment of revocation. As a result of the reexamination, the possibility that the beneficial disposition against the principal may be revoked ex officio and the plaintiff in the judgment of revocation cannot be ruled to have the interest in filing a lawsuit to revoke the disposition of refusal against him/her.

2. According to the reasoning of the lower judgment and the record, the lower court: (a) on April 3, 2012, the Defendant announced the instant recruitment notice to the effect that two gas stations (one unit, one right-hand place) are additionally installed between the Dobong-dong, Busan, the Yandong-dong and the Yannam-si, Kimhae-si, and one another, and then amended the plan for the placement of gas stations within development restriction zones; (b) on the same day, the Plaintiff and the Nonparty filed an application with the Defendant for the selection of the operator of the gas station to be installed on the left-hand side of the road; and (c) on August 22, 2012, the Defendant applied to the Plaintiff for the selection of the operator of the gas station on the ground that “the removal from the development restriction zone is not in conformity with the application conditions set forth in the recruitment notice; and (d) on the ground that the Plaintiff did not seek the revocation of the selection of the Plaintiff’s non-party’s selection of the gas station.

However, in light of the legal principles as seen earlier, it cannot be said that there is no possibility that the plaintiff will be selected as the operator of the gas station as a result of the defendant's reexamination according to the purport of the judgment after the judgment of revocation of the rejection disposition of this case becomes final and conclusive. Therefore, the judgment below erred by misapprehending the legal principles as to the interest in the litigation in the light of the light of the interests in the

3. Therefore, without examining the remaining grounds of appeal, 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 by the assent of all participating Justices on the bench.

Justices Jo Hee-de (Presiding Justice)