Whether it constitutes a second disposition under Article 30 (2) of the Administrative Litigation Act even in cases where an administrative agency, for which a final and conclusive decision of rejection has been rendered, issues a new ground after the closing of arguments at a fact-finding court (affirmative)

According to the provisions of Article 30 (2) of the Administrative Litigation Act, in a case where a ruling revoking a rejection disposition by an administrative agency becomes final and conclusive, the administrative agency that issued the disposition is obligated to re-disposition the previous application in accordance with the purport of the ruling. However, in this case, the administrative agency that is a party to the final and conclusive judgment may render a ruling rejecting the previous application for a new reason after the closing of arguments at the fact-finding court

Articles 30(2) and 34 of the Administrative Litigation Act

Supreme Court Decision 88Nu6177 delivered on February 28, 1989 (Gong1989, 551) Supreme Court Decision 89Nu985 delivered on September 12, 1989 (Gong1989, 1511) Supreme Court Decision 90Nu3560 Delivered on December 11, 1990 (Gong1991, 495)

Maximum Mine (Attorney Yoon Young-young, Counsel for the plaintiff-appellant)

The head of Seocho-gu Seoul Metropolitan Government

Seoul High Court Order 96Da1318 dated November 15, 1996

The reappeal is dismissed.

The grounds of reappeal are examined.

1. On the first ground for appeal

According to the purport of the application of this case, it is clear that the applicant has filed an application for indirect compulsory performance pursuant to Article 34 of the Administrative Litigation Act with the application for the implementation of a disposition of permission for changing the form and quality of land to the respondent, and the reason for the application also asserted the above two grounds for the above two applications. Therefore, in addition to determining the application for indirect compulsory performance, the court below's rejection of the application for the part of the application for permission for changing the form and quality of land is just and there is no error of law as to the misapprehension of legal principles or the exercise of the right of request for explanation.

2. On the second and third grounds for appeal

According to the provisions of Article 30 (2) of the Administrative Litigation Act, in a case where a judgment revoking a rejection disposition by an administrative agency becomes final and conclusive, the administrative agency that issued the disposition has the duty to re-disposition against the previous application in accordance with the purport of the judgment. However, in this case, the administrative agency that was the party to the final and conclusive judgment may render a disposition rejecting the previous application for a new reason after the closing of arguments at the fact-finding court, and such a disposition also constitutes a re-disposition provided for in the above provisions (see, e.g., Supreme Court Decisions 89Nu985, Sept. 12, 1989; 90Nu3560, Dec. 11, 19

According to the reasoning of the order of the court below, the applicant applied for the permission of change of form and quality of the land of this case to the respondent around January 24, 1994, but the respondent rejected the application on the ground that it is a park site. The applicant filed a lawsuit against the respondent about the cancellation of the permission of change of form and quality of land as Seoul High Court No. 94Gu4761, July 20, 1995, and the above court decided on August 24, 1993 that the respondent applied for the permission of change of form and quality of land to the above land of this case to the head of the 2nd city planning facility on the premise that the above change of form and quality of land was not necessary for the 19th of May 20, 1993. The court below's decision on the ground that the above change of form and quality of land was not necessary for the 19th of the above city planning facility on March 16, 1987.

3. Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Yong-hun (Presiding Justice)