(영문) 부산고등법원 2016.4.29. 선고 2015누172 판결

The Defendant’s disposition not to select a gas station operator within the development restriction zone against the Plaintiff on August 22, 2012 is revoked.

2. Purport of appeal

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. On April 3, 2012, the Defendant revised the plan for the placement of gas stations in a development restriction zone so that two gas stations (one station on the left side and one right side) can be additionally installed between the C underground tea road located in Gangseo-gu Busan Metropolitan City and E (City/Do boundary) located in Gangseo-gu, Busan Metropolitan City. On the same day, the Defendant published the plan for the placement of gas stations within the development restriction zone to recruit the gas station operators (hereinafter “instant recruitment publication”) with the following contents in accordance with the above alteration announcement.

○ Qualification

1) At the time of designation of a development-restricted zone (as of December 29, 1971), a person who was residing in the area in question and owns a house or land in the development-restricted zone (as of the designation),

2) The period during which a person who has resided outside a development restriction zone for a period of three years for living, including one who has resided outside a development restriction zone, but has resided outside a development restriction zone for attending the school of the householder, lineal descendant,

○ Selection Criteria

(a) Giving priority to the date of receipt (the same date shall be the same order, and a case received by the first two days before the date of implementation of the placement plan shall be springed in the same order);

* Upon receipt of a request to supplement a document received due to lack of required documents, the date of receipt shall be the final order of receipt after completion of the supplement documents.

(b) One’s own land shall take precedence over another’s land, and when combined with another’s land, the person who holds the higher owning ratio of his own land shall take precedence.

(e) An examination shall be omitted where the qualifications, location conditions, etc. of the applicant are satisfied when the sole application is filed in the left-hand or right-hand specific area;

(g) If the site location conditions are inappropriate under other Acts, such as the Gangseo-gu Busan Metropolitan City Plan for the Placement of Gas Stations and the public notice of the requirements for the registration of gas stations in the Gangseo-gu Busan Metropolitan City Development Restriction Zone, the site location conditions shall

(h) Matters not set out in the above criteria shall be based on the criteria for a plan for the placement of gas stations in the Gangseo-gu Busan Metropolitan City development restriction zone, and in the case of competition under the same conditions, by lot.

○ Period of receipt: From April 3, 2012 to May 2, 2012

○ Selection of project recipients: During May 2012

[Guidelines for Preparation of Required Documents]

1. Documents evidencing residence at the time of designation of development restriction zones;

(a) An applicant party: An abstract or abstract of resident registration (the whole details of the access shall accrue);

(b) Where a person resides outside of a development restriction zone to send his/her householder or lineal descendant to school: An abstract or abstract of the resident registration of the householder or his/her lineal descendant (the entire entry shall accrue

2. Documents evidencing the ownership of housing or land in a development restriction zone;

3. Documents on the ownership, lease, etc. of the prospective project site;

4. Plans for placement of gas stations;

B. On April 3, 2012, the Plaintiff applied for the selection of the left-hand gas station operator to the Defendant, and the Defendant’s assistant intervenor applied for the selection of the operator of the left-hand gas station on April 4, 2012, which is the same place as the Plaintiff.

C. On August 22, 2012, the Defendant rendered a disposition to not select an operator of a gas station (hereinafter “instant disposition”) on the ground that the Plaintiff transferred the gas station business plan submitted by the Plaintiff to outside of a development-restricted zone, and on the same day, the Defendant selected the supplementary intervenor as an operator of the gas station on the same day.

D. The Plaintiff, who was dissatisfied with the instant disposition, filed an administrative appeal with the Busan Metropolitan City Administrative Appeals Commission, but was dismissed on December 11, 2012.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 3 (including paper numbers; hereinafter the same shall apply), Eul evidence No. 1, the purport of the whole pleadings

2. Whether the lawsuit of this case is lawful

A lawsuit seeking the cancellation of an illegal administrative disposition is intended to restore to the original state by excluding the state of illegality caused by the illegal disposition, and protect or 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 it, there is no benefit to seek the cancellation (see, e.g., Supreme Court Decision 2004Du13219, Jul. 28, 2006). However, the benefit of a lawsuit is not recognized only where the possibility of remedy

When multiple persons who have applied for the beneficial administrative disposition, such as authorization and permission, are bound to result in the revocation of the disposition of rejection against others in relation to one another, in principle, a person who has not received such disposition is standing to seek revocation of the disposition of rejection against him/her as a direct counter-party to the disposition of rejection against the application. In cases where the judgment of revocation becomes final and conclusive, even if the disposition of revocation, such as permission, 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 of the plaintiff and the plaintiff of the judgment of revocation, while excluding the grounds identified in the judgment based on the binding force of the judgment of revocation, while excluding the grounds identified in the judgment, and as a result, the possibility that the beneficial disposition of the plaintiff of the judgment of revocation is revoked ex officio and the possibility that the beneficial disposition of the plaintiff of the judgment of revocation is made cannot be fully ruled. Thus, barring special circumstances,

In light of the above legal principles, if the cancellation judgment on the disposition of this case becomes final and conclusive, it cannot be said that the plaintiff is not likely to be selected as the operator of the gas station as a result of the defendant's reexamination according to the purport of the judgment. Thus, the lawsuit of this case

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The qualification requirements for the instant recruitment notice are unclear and incomplete, and unlike the Plaintiff who has resided in a short period of not less than 40 years, the contents of the qualification requirements for application in the instant recruitment notice are not consistent with the legislative intent of Article 12 of the Act on Special Measures for Designation and Management of Areas of Restricted Development (hereinafter “Act on Special Measures for Designation and Management of Areas of Restricted Development”) because there is a lot of concerns about occurrence of reasons falling under item (ii) of the qualification requirements, and thus, the instant disposition based thereon is unlawful (hereinafter “

2) Even if the recruitment notice of this case is valid, ① the Defendant’s disposition of this case without requiring the Plaintiff to supplement data meeting the qualification requirements for the recruitment notice of this case is unlawful in violation of the Administrative Procedures Act. ② The Plaintiff satisfies the above qualification requirements, and thus, the Defendant’s disposition of this case on a different premise is unlawful (hereinafter referred to as Chapter 2).

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Determination as to the first proposal

Article 18 (2) 3 of the Enforcement Decree of the Development Restriction Zone Act (hereinafter referred to as the "Enforcement Decree") provides that "any person who resides in the relevant development restriction zone from the time of designation of the development restriction zone (including any person who was residing in the relevant development restriction zone at the time of designation of the development restriction zone and was residing outside the development restriction zone for not more than three years for living, but the period during which he/she resided outside the development restriction zone for attending the development restriction zone for school of head of household, lineal descendant, etc. shall be deemed the period during which he/she resided in the development restriction zone; hereinafter referred to as "resident at the time of designation") is defined as "a person who

In light of the fact that the recruitment notice of this case sets forth the same contents as the qualification requirement of application for the recruitment notice of this case under Article 18 (2) 3 of the Enforcement Decree of the Act, and sets forth the phrase "resident at the time of designation" as the qualification requirement of application for the recruitment notice of this case, the defendant seems to have required the same requirements as the above provision of the Enforcement Decree. The above provision of the Enforcement Decree stipulates that "resident at the time of designation" is a person who resides in the relevant development restriction zone from the time of designation of the development restriction zone, and exceptionally recognizes the qualification by relaxing the requirements within the scope of the general title. The recruitment notice of this case does not stipulate the part concerning the principle of exception,

However, Article 12 (1) 1 (e) of the Act (facilities for residence, living convenience, and livelihood of residents in a development restriction zone) and Article 13 (1) [Attachment Table 1] 5 (e) (10) (e) of the Enforcement Decree of the Act provides that a gas station may be established only for residents at the time of designation with permission from the head of a Si/Gun/Gu, etc. within a development restriction zone. In this case, the meaning of residents at the time of designation shall be defined in Article 18 (2) 3 of the Enforcement Decree. The public notice of recruitment of this case is based on a natural premise that "persons who reside in the development restriction zone from the time of designation as residents in principle at the time of designation as the development restriction zone, who resided in the development restriction zone, and who resided in the development restriction zone as at the time of designation as the development restriction zone." Thus, it is difficult to see that the result of the public notice of this case does not meet the requirements of Article 18 (2) 2 as at the time of the application for designation as residents.

2) Determination on the second proposal

A) Facts of recognition

The following facts can be acknowledged in full view of the aforementioned evidence and evidence Nos. 4, 6, and 9 and the purport of the entire pleadings.

(1) According to the plaintiff's resident registration abstract, the plaintiff resided before December 29, 1971 at the Busan Gangseo-gu F (hereinafter "the domicile of this case") located within the development restriction zone, which was at the time of designation of the development restriction zone. On August 11, 1989, the plaintiff transferred the domicile (hereinafter "the first transfer"). On January 5, 191, the plaintiff transferred the domicile of this case to the Chang-gun, Chang-gun (hereinafter "the second transfer"), and on August 29, 191, the plaintiff moved to the domicile of this case (hereinafter "the second transfer") on August 29, 191, and there was no change at the time of application for designation of the operator of the gas station of this case after moving to the domicile of this case.

(2) On June 7, 2012, the Defendant demanded that the Plaintiff entered a development restriction zone for a period of not more than three years, and therefore, the Plaintiff submitted a written confirmation on June 15, 2012 that “the documents evidencing whether the Plaintiff resided outside the development restriction zone on the ground of his occupation, etc.” In order to purchase farmland located outside the area of his domicile, the first transfer of the instant case was only the Plaintiff’s resident registration for the purpose of viewing the driver’s license test in close to the instant domicile and continued to reside in the actual domicile of the instant case.”

(3) The Defendant received the above written confirmation from the Plaintiff, followed the questioning of the Ministry of Government Legislation and the resolution of the coordination committee of the Gu affairs, and issued the instant disposition against the Plaintiff.

B) Determination

(1) In determining the legitimacy of the instant disposition, whether to determine only the documents submitted to the Defendant at the time of receipt or disposition as prescribed by the public notice of recruitment, or whether to determine the legitimacy of the instant disposition by comprehensively taking into account all the documents submitted by the Defendant at the time of

In principle, barring any special circumstance, whether an administrative disposition is lawful in an appeal litigation shall be determined at the time of the administrative disposition. Here, the meaning of the time of the administrative disposition, not at the market price of the judgment, but at the time of the disposition, is not that affected by the amendment or repeal of statutes or changes in the state of fact after the disposition in determining whether the administrative disposition was unlawful, and it does not mean that the materials which existed at the time of the disposition or materials submitted to the administrative agency at the time of the disposition are determined whether the administrative disposition was unlawful. Thus, the proof of facts, etc. at the time of the disposition can be made until the time of the closing of arguments at the trial court. The court may determine the objective facts known to the administrative agency at the time of the administrative disposition and determine the illegality of the disposition based on such facts (see Supreme Court Decision 2012Du25125, Oct. 3

However, in full view of the following circumstances, if the defendant's qualification requirements, criteria for selection, and period of receipt are determined and publicly announced in the light of this case, it shall be determined on the basis of the materials submitted to the defendant at the time of receipt or disposition, and it shall not be determined whether the disposition is unlawful including the materials subsequently submitted.

① In a case where multiple persons who applied for a beneficial administrative disposition, such as authorization and permission, are not in a mutual relation, permission, etc. granted to one person, and the administrative agency, including the defendant, etc., issued a public notice on the qualification for application or selection (order of priority, etc.) while recruiting business operators in order to conduct a beneficial administrative disposition, the administrative agency made an external expression of the intent to make the disposition according to the qualification requirements and selection criteria set forth in the criteria for the disposition belonging to the discretion, and the applicant in the relation of the police officer, trusted that he/she will exercise discretion in accordance with the criteria for selection based on the data submitted by the administrative agency within the period of receipt by the applicant, barring any special circumstance. Thus, a disposition contrary to the criteria for selection is an unlawful disposition that goes against the principle of equality or the principle of protection of trust or the principle of protection

② If the other party to the rejection disposition directly against the defendant in a lawsuit seeking revocation of the rejection disposition becomes final and conclusive in accordance with the binding force of the revocation judgment, the administrative agency is obligated to re-examine whether the requirements for the revocation judgment are met and whether the respective applications of the plaintiff and the plaintiff and the plaintiff of the plaintiff in the status of excluding the grounds for illegality identified in the judgment. If the revocation disposition is rendered after examining the illegality of the rejection disposition including the materials submitted up until the closing of arguments in the lawsuit seeking revocation, the administrative agency shall re-examine whether the requirements for the revocation judgment including the materials submitted in the lawsuit seeking revocation after the disposition are satisfied and friendly. In such a case, the plaintiff of the revocation judgment without meeting all the requirements for the revocation disposition shall be protected within the acceptance period. On the other hand, the plaintiff of the revocation judgment without meeting the requirements for all required documents, and the legal stability and trust of the plaintiff in good faith who filed the application within the acceptance period (the defendant's assistant does not carry on the business in this case until the appointment of the operator of the plaintiff in this case is completed).

③ The date of receipt shall be the priority order in the instant public offering notice, and the date of receipt of supplementary documents shall be the date of receipt, if the applicant for the instant public offering is requested to supplement documents due to inadequate documents. If the applicant for the revocation lawsuit fails to submit supplementary documents after receiving the first priority order without submitting all documents proving his/her qualification for application, and if the applicant for the revocation lawsuit submits supplementary documents in an appellate litigation seeking revocation of the disposition and receives a revocation judgment, he/she may preserve the first priority order and bring about unfair outcomes (in cases where it is deemed that the supplementary documents were received at the time of submission in an appellate litigation to avoid such improper outcome, the Plaintiff in the revocation lawsuit is lower than the principal applicant, and thus, the disposition subject to revocation lawsuit may be deemed lawful).

(2) Whether there is deviation from or abuse of discretionary authority, such as misconception of facts about the instant disposition

According to Article 13 of the Civil Petitions Treatment Act, etc., the Plaintiff submitted an application at the time of submission of the application. In the event of unclear points related to the requirements for examination among the contents of the submitted documents, the administrative agency is required to supplement the applicant. The recruitment notice of this case only applies to the documents evidencing that the applicant resides in the fact of residence at the time of designation of a development restriction zone and does not require the presentation of all the requirements for the selection. Thus, the Plaintiff’s priority should be determined on the date of the first receipt as long as all the documents presented by the Plaintiff were submitted. The Plaintiff’s land owner’s Plaintiff

In light of the following circumstances acknowledged by adding the whole purport of the pleadings to the statements in Gap evidence Nos. 1 through 4, 6, and 9, the plaintiff constitutes a subordinate in comparison with the defendant supplementary intervenor in the light of the lack of prima facie evidence as of the time of the disposition in this case, or the selection criteria, and thus, it cannot be deemed that the disposition in this case was a deviation or abuse of discretionary power by misunderstanding the facts.

(1) In the recruitment announcement of this case, where an applicant has resided outside a development restriction zone for the purpose of his/her resident registration, abstract, and school attendance, the applicant’s resident registration, abstract, and certificate of his/her householder or lineal descendant are required to be submitted, and where the applicant has resided outside a development restriction zone for his/her occupation, evidentiary materials need not

② However, the qualification requirement for the recruitment announcement of this case is "resident at the time of designation", and the person who has resided outside a development restriction zone for a period of not more than three years except for the purpose of school attendance is recognized as "resident at the time of designation", and the abstract of resident registration, such as the plaintiff, has been transferred twice outside a development restriction zone, and the abstract of resident registration, if it is evident that the applicant does not meet the qualification requirement at the time of designation of "resident at the time of designation", the document which proves that the applicant will move out for his occupation can be considered as an essential document proving that the applicant is "resident at the time of designation", and the disadvantage caused by the non-production should be attributed to the applicant. According to the recruitment announcement of this case, the detailed accompanying document must be accompanied by evidentiary documents, documents which prove the ownership of housing or land at the time of designation of the development restriction zone, documents which prove the ownership of housing or land in the development restriction zone, and the placement plan of gas station.

② Even if the order of priority should be determined on the basis of the date of the first receipt that all the documents presented in the recruitment notice of this case were submitted, the Defendant demanded on June 7, 2012 that the Plaintiff had access to the restricted development area outside of the restricted development area for a period of not more than three years, and thus, the Plaintiff submitted only a certificate that cannot be viewed as objective and reasonable evidentiary materials on June 15, 2012, and did not submit other evidentiary documents that can prove that the Plaintiff actually resided in the restricted development area or resided outside the restricted development area for occupation and employment, unlike the contents of the resident registration abstract registration of this case at the time of the disposition of this case. Thus, the Plaintiff’s qualification at the time of the disposition of this case was not proven (based on the materials submitted until the disposition of this case was taken, the determination of the legality of the disposition is as seen earlier).

③ Article 13(1) of the Civil Petitions Treatment Act provides that when there is any defect in the civil petition documents received, the head of an administrative agency shall, without delay, demand a civil petitioner to supplement the documents by setting a reasonable period necessary for supplementation. Article 17(5) of the Administrative Procedures Act provides that when there is any defect in the documents, such as the defect in the documents required for the application seeking a disposition by an administrative agency, the administrative agency shall, without delay, demand the petitioner to supplement the documents within a reasonable period necessary for supplementation. However, as seen earlier, it is difficult to deem that the defendant requested the applicant to supplement the documents that can explain the qualification requirements for the plaintiff, and that the applicant, such as the plaintiff, etc., has a duty to continuously demand until the recognition of the qualification requirements for the applicant is possible. According to the inquiry and inquiry case book issued by the Ministry of Land, Transport and Maritime Affairs on development restriction zones around November 201, the period in which the Ministry of Land, Transport and Maritime Affairs resided in the development restriction zone should be deemed to have been the period residing in public documents, such as resident registration cards

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is unfair with the conclusion different, so the judgment of the court of first instance is revoked, and the plaintiff's claim is dismissed and it is so decided as per Disposition