(영문) 서울고등법원 2012.5.15.자 2012루138 결정

If a disposition is not taken pursuant to the purport of this section, the disposition shall be taken from the day following the expiration of the period.

By the time of subdivision, 5,00,000 won per day shall be paid.

2. Purport of appeal;

The order is as set forth in the text.

Reasons

1. Basic facts

According to the records of this case, the following facts are recognized.

A. The applicant: (a) on October 25, 2010, the Respondent totaled 3,812 square meters (hereinafter referred to as “the instant case”) in Yangju-si to the Respondent

The application for permission was filed to conduct liquefied petroleum gas charging business on the ground of the application site.

B. The respondent on November 24, 2010: (a) on the applicant, and (b) on the safety control of liquefied petroleum gas, and (c) on the safety control of liquefied petroleum gas;

Article 10 (1) 1 of the Enforcement Rule of the Liquefied Petroleum Gas Act (hereinafter referred to as the " Liquefied Petroleum Gas Act") (attached Table 3) 1

1) According to the provisions of section 7(g), the surface of the charging station site is adjacent to a road of not less than 8 meters, but this g.

건 신청지와 접하고 있는 도로는 사도 ( 6m 건축도로 ) 로 지정된 양주시 ◆◆◆ 및 완충

(2) The Liquefied Petroleum Gas Act does not comply with the above provisions in connection with the same 722 - 4 as green areas.

In relation to Article 4 (1) 1 and 3, where a filling station is located in the application site of this case, the filling station shall be located.

Traffic congestion and safety accidents of pedestrians due to traffic flow caused by vehicles entering into the port shall exist;

(3) Article 44 (1) of the Building Act and the Enforcement Decree of the same Act shall be

not securing roads for access to a site of a building under section 28(1), and liquid stone

Permission for development is not allowed for the instant application site for the gas filling project, and "urban parks" and "urban parks" are not permitted.

The amount in this case is contrary to the Act on Green Areas, Etc. (hereinafter referred to as the "Urban Park Act").

Non-permission of an application for a petroleum gas filling business (hereinafter referred to as the "previous rejection disposition").

was.

C. On the south side of the application site of this case, 360 Do road of 4-line Do road is located.

at the entrance from the above local highway 360 to the application site of this case, access roads of about 8m wide.

A. The access road is established, and the access road passes through a buffer green belt (1,124 m24 m2, 124 m2) at two weeks.

The instant application is filed through a private road of about six meters in width (212 - 110 meters on the 16th road, 213 - 5 67 square meters on the 5th road)

(2) is connected to the section.

The buffer green belt is practically green area because some bicycle roads and street trees are planted.

Not being used as such, and in particular, about 6m of private roads and 8m of width among buffer green areas, the width of which is about 6m;

Part of the entry route (the part remaining 72m2 in the area of the instant application out of 1, 124m 1, 124, e.g., e., e., e.

하 ' 이 사건 완충녹지 ' 라 한다 ) 에 대하여는 인근 순대국집 운영자인 ■■■이 2009 . 10 .

7. Occupancy and use of a road, including 11m2, among 722m2, 149m2, 7m2, from the respondent;

A person who has obtained permission (from October 7, 2009 to December 31, 2018) and kept the shape of a road and entered the road to enter the road.

용하고 있었고 , 신청인은 2010 . 6 . 경 위 ■■■으로부터 위 도로점용허가 토지에 대한

consent to use has been obtained.

한편 , 피신청인은 2011 . 1 . 6 . ■■■에 대하여 양주시 도시공원녹지의 점용허가

Pursuant to the Ordinance on this case, the buffer green area of this case shall not be subject to permission to occupy and use road under the Road Act.

As such, the above permission to occupy and use the road for the purpose of access to the building is not granted.

The revocation was made.

D. The Claimant was previously filed against the Respondent on January 6, 2011 as the District Court 201Guhap100

The court filed a lawsuit to revoke the rejection disposition, and the above court rendered a favorable award to the petitioner on September 27, 2011.

Of the reasons why the decision was rendered, the Buffer green belt at the time of the previous rejection disposition in the case of the Buffer green

As long as the permission to occupy and use has been maintained, the permission has been revoked thereafter;

The ruling states that it shall not constitute a ground for justifying the previous rejection disposition, and the above ruling is 2011.

10. 19. Final and conclusive

E. Since then, the respondent has revoked permission to occupy and use the buffer green area of this case.

on February 17, 2012, with a view to re-dispositioning the applicant, 1 liquid petroleum prices for the applicant

The instant application is in conflict with Article 3(4) of the Swiss Act and Article 10 of the Enforcement Rule of the same Act.

The land is not adjacent to a road with a width of at least eight meters, and ② the width of the access road is narrow to enter the vehicle.

(3) Buffer greenbelts in this case pursuant to Article 38 of the Urban Park Act.

In accordance with the Building Act, it is not possible to enter into the site of the application of this case as the permission of the road is not granted.

The applicant's liquefied petroleum price due to the lack of permission for development and building permission;

A disposition of non-permission for the application for the permission of the loyalty project (hereinafter referred to as the "new rejection disposition") was made.

2. The assertion and judgment

A. Applicant's assertion

The applicant is a new rejection disposition that is against the binding force of the above final and conclusive judgment.

It does not constitute a disposition in accordance with the purport of the judgment stipulated in Article 30(2) of the Administrative Litigation Act.

As the respondent does not take a measure according to the purport of the above judgment, the respondent does not take a measure according to the purport of the above judgment.

As an indirect compulsory performance under Paragraph 1, this article argues that the same compensation as the purport of the application is sought.

(b) Related statutes;

Attached Form 3 is as described in the "Related Acts and subordinate statutes".

C. Determination

(1) Pursuant to Article 30(2) of the Administrative Litigation Act, a decision to revoke a rejection disposition by an administrative agency

(2) If the determination has become final and conclusive, the filing of the application shall be

(2) If the administrative disposition is lawful, the administrative disposition shall be deemed to have been taken again.

Since it is determined on the basis of statutes and facts, the administrative agency which is the party of the final judgment

(1) A disposition of refusal may be taken on the ground of a new reason that has occurred after the previous disposition, and such action may be taken.

Sector also constitutes a re-disposition under the above provision. Here, whether a new reason is a new one is a previous one

Recognizing the identity of the factual basis of the grounds determined in the judgment as illegal;

shall be determined on the basis of whether there is a reason, and the identity of the basic facts shall be the reason for the disposition.

Based on the specific facts before legal evaluation, the basic social factual basis is

In a basic point of view, decision should be made on the same basis (Supreme Court Decision 27 October 2011).

2011Du14401, see Supreme Court Decision 2011Du1401.

(2) According to the facts and records of the recognition in this case, it is related to the previous rejection disposition.

In administrative litigation (Korean Government District Court 201Guhap100), the application price of this case is permitted to occupy and use the road.

Liquefied Petroleum Gas Act on the ground that the buffer green area of this case is connected to 360 Do roads through the buffer green area of this case

As long as it has satisfied the requirements of connection under the Enforcement Rule and has secured the permission to occupy and use the buffer green belt of this case.

There is no illegality in other Acts and subordinate statutes, such as the Urban Park Act, and permission to occupy and use after the previous disposition of refusal.

The grounds for the revocation of the previous rejection disposition shall not be determined to justify the previous rejection disposition.

The decision of revocation of the previous rejection disposition is rendered, and the respondent thereafter is subsequent to the previous rejection disposition.

The permission to occupy and use the buffer green area of this case is revoked, and the land price of this case is liquid petroleum price

on February 17, 2012 due to the failure to meet the contact requirement under the Switzerland Enforcement Rules.

The grounds for the new rejection disposition are subject to the enforcement rules of the Liquefied Petroleum Gas Act.

Grounds for failing to meet the requirements, and permission to occupy and use the buffer green belt in this case under the Urban Park Act.

Unlike the previous rejection disposition, the grounds for non-compliance with the green buffer of this case are the road points for the green buffer of this case.

The grounds for the previous rejection disposition are based on the premise that the previous rejection disposition has been revoked.

It is a separate fact that cannot be viewed as having identity in fact relations (the previous rejection).

The above-mentioned District Court Decision 201Guhap100 decided on the above-mentioned District Court's 201Guhap10

The grounds for the revocation of the previous rejection disposition are not the grounds for justifying the previous rejection disposition.

Then, it is not decided that a new rejection disposition may not be taken on the ground of this reason.

further, the following circumstances that may be recognized by the facts and records of the recognition, namely:

① On August 2, 2010, an applicant filed an application for permission with respect to the instant liquefied petroleum gas filling business.

In relation to the granting of permission to occupy and use the buffer green area in this case as the current status;

Upon the filing of the petition, the respondent shall not later than the settlement of the above civil petition to the relevant department.

To order the suspension of permission in relation to green areas, and on October 20, 2010, the investigation related to the above civil petition is conducted.

After completion, the internal decision is made to cancel the permission to occupy and use the buffer green belt in this case.

After that, on January 6, 2011, the respondent shall comply with the provisions of the Ordinance on Permission to Occupy and Use Urban Parks in Yangju-si.

D. The buffer green belt of this case is not the area subject to permission to occupy and use roads under the Road Act, and its access to the building.

Permission to occupy and use the buffer green belt in this case for reasons that it is not possible to permit the occupation and use of the buffer green zone in this case.

In light of the cancellation, the respondent unfairly delays the disposition and the final judgment

It does not artificially establish the grounds for the rejection disposition to avoid the speed.

I would like to say.

Therefore, on February 17, 2012, the respondent's new rejection disposition against the applicant is previous rejection.

The Administrative Litigation Act (hereinafter referred to as the "Administrative Litigation Act") provides a new rejection disposition for a new reason that occurred after the disposition.

30 (2) The disposal of another application for relocation has been made in accordance with the purport of a final and conclusive judgment.

(See Supreme Court Decision 2011Du14401 Decided October 27, 201).

(3) Ultimately, on the premise that the respondent does not make a disposition in accordance with the purport of the above final judgment.

The petition of this case by the applicant is without merit.

3. Conclusion

Thus, the petitioner's application of this case shall be dismissed as it is without merit, and the decision of the first instance court shall be this.

Since the conclusion is unfair with different conclusions, the Respondent's appeal is accepted, and the first instance court's decision is revoked and new.

The application of the Cheongman shall be dismissed, and it is so decided as per Disposition.

May 15, 2012

Judges

The presiding judge shall appoint a judge;

D. D. P. P. L. L. L. L.

Judges Kim Sang-hoon et al.

Note tin

1) At the time, the respondent's assertion that the permission to occupy and use the road was revoked after the previous rejection disposition was rejected in the above lawsuit and lost.

In this regard, it is reasonable to waive an appeal on the grounds that the point of time of judging the illegality of an appeal litigation is the time of disposition, and that it is the time of disposition.

was under the direction of the Office.