[1] The base point of time for compliance with the deadline for filing a new lawsuit in a case where there is a change in a lawsuit in a revocation suit (=the time when the lawsuit is changed)

[2] In a case where the time limit to be attached to a license is unreasonably short of the nature of the permitted business, whether such time limit can be deemed as the duration of the license rather than the duration of the license itself (affirmative)

[3] The case holding that the permission to open a private road is not naturally invalidated on the ground that the construction period cannot be deemed as the term of the permission to open a private road itself, in case where a private road fails to undergo the inspection of completion within the construction period stipulated in the permission

[1] A revocation suit shall be instituted within 90 days from the date on which the disposition, etc. is known, and shall not be filed after the lapse of one year from the date of the disposition, etc. (Article 20(1) and (2) of the Administrative Litigation Act), and when the previous lawsuit is withdrawn and the new lawsuit is changed to be instituted, compliance with the period for filing a lawsuit against the new lawsuit shall be based on the time when the lawsuit is changed in principle.

[2] A general term of validity of an administrative disposition shall lose its effect upon the lapse of the term. However, if the term attached to a license is unreasonably short of the term given the nature of the permitted business, such term may be interpreted as not the term of validity of the license itself, but as the term of the license itself, taking into account amendments to the term of the license.

[3] The case holding that the permission to open a private road is not naturally invalidated on the ground that the construction period cannot be deemed as the term of the permission to open a private road itself, in the event that the private road fails to undergo a completion inspection within the construction period stipulated in the permission to open

[1] Articles 20 and 27 of the Administrative Litigation Act / [2] Article 1 of the Administrative Litigation Act / [3] Article 42 of the Private Road Act, Article 1 of the Administrative Litigation Act / [General Administrative Disposition]

[1] Supreme Court Decision 73Nu171 delivered on February 26, 1974 (Gong1974, 7747) / [2] Supreme Court Decision 4293Ra42 delivered on February 22, 1962 (No. 10-1, 105) Supreme Court Decision 94Nu11866 delivered on November 10, 1995 (Gong195Ha, 3930) Supreme Court Decision 2003Du12837 delivered on March 25, 2004 (Gong2004, 726)

East Leisure Industry Co., Ltd. (Law Firm Barun Law, Attorneys Cho Young-han et al., Counsel for the defendant-appellant)

Main Market

United States Development Co., Ltd. (Attorney Lee Dong-soo, Counsel for the plaintiff-appellant)

Seoul High Court Decision 2003Nu14682 delivered on May 28, 2004

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

We examine the grounds of appeal.

1. Judgment on the second ground for appeal

A revocation suit shall be instituted within 90 days from the date on which the disposition, etc. is known, and no lawsuit shall be instituted after the lapse of one year from the date on which the disposition, etc. is taken (Article 20(1) and (2) of the Administrative Litigation Act), and when the previous lawsuit is withdrawn by modifying the purport of the claim and it is changed to be a new lawsuit, compliance with the period for filing a lawsuit against the new lawsuit shall, in principle, be based on the time when the lawsuit is changed (see Supreme Court Decision 73Nu171, Feb. 26,

According to the reasoning of the judgment below, the court below acknowledged facts as stated in its reasoning. The plaintiff filed a lawsuit seeking cancellation of the disposition No. 2 of this case in the judgment of June 26, 2002, which was a disposition of June 2002, but changed the purport of the claim to seek cancellation of the disposition No. 1 of this case in the judgment of September 9, 2002 through August 5, 2000. On September 23, 2003, the court below changed the purport of the claim again in exchange for exchange of the purport of the disposition No. 2 of this case in the judgment of September 23, 2003, which is one of the selective claims. However, although the change of the purport of the claim of this case as of September 23, 2003 is obvious that the plaintiff was made after the lapse of one year from the date of the disposition of this case, and thus, it cannot be viewed that the revocation of the disposition of this case was unlawful.

2. Judgment on ground of appeal No. 1

In general, if the effective period of an administrative disposition is determined, the effect of the administrative disposition shall be invalidated upon the lapse of such period: Provided, That if the period attached to the permission is unreasonably short due to the nature of the permitted business, such period may be interpreted as taking into account the revision of the conditions by considering the period of permission, not the duration of the permission itself, rather than the duration of the permitted business (see Supreme Court Decisions 4293Du42 delivered on February 22, 1962; 2003Du12837 delivered on March 25, 2004, etc.).

According to the reasoning of the judgment below, on May 7, 1996, the court below determined that the plaintiff obtained permission to open private roads from the defendant on May 7, 199, and that the plaintiff transferred all business rights related to golf courses such as the site and facilities of golf courses, access road site and golf courses related to golf course business to the supplementary participant on September 15, 199, and that the supplementary participant did not comply with the legal principles as to permission to open private roads from the defendant on August 5, 200 to the supplementary participant, and that the construction period should be changed from August 5, 200 to December 31, 200 (the Disposition No. 1 of this case) to the supplementary participant and the new construction period should not be determined based on the legal principles as to permission to open private roads, and that the new construction period should not be determined based on the changed construction period's legal principles as to permission to open private roads.

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 Yoon Jae-sik (Presiding Justice)