Open Decision Ledger · Constitutional, administrative & state liability
Re-refusal disposition contrary to the binding force of a judgment of revocation of a refusal disposition, and the requirements for an application for indirect compulsory execution
Translated from the Korean original. Read the Korean
Supreme Court, Dec. 11, 2002, 2002Mu22 (ruling)
Case name: 간접강제
Official text on the National Law Information Center
Question
Where, after a judgment of revocation of a refusal disposition has become final and conclusive, the administrative agency again issues a refusal disposition on the ground of amended statutes, may the requirements for an application for indirect compulsory execution be regarded as satisfied if that disposition is void by operation of law as being contrary to the binding force?
Holding
If the re-disposition is void by operation of law as being contrary to the binding force of a final and conclusive judgment, it is the same as if no re-disposition had been made at all, and therefore the requirements for an application for indirect compulsory execution are satisfied. The Supreme Court held that the new refusal disposition applying the amended statutes was contrary to the binding force and void by operation of law, notwithstanding that there was a transitional provision applying the previous provisions where an application was pending under the amended statutes.
Summary of the holding, verbatim
재처분을 하였다 하더라도 그것이 종전 거부처분에 대한 취소의 확정판결의 기속력에 반하는 등으로 당연무효라면 이는 아무런 재처분을 하지 아니한 때와 마찬가지라 할 것이므로 이러한 경우에는 행정소송법 제30조 제2항, 제34조 제1항 등에 의한 간접강제신청에 필요한 요건을 갖춘 것으로 보아야 한다.
Unofficial English translation
even if a re-disposition has been made, if it is void by operation of law, such as where it conflicts with the binding force of the final and conclusive judgment revoking the earlier refusal disposition, this may be regarded as the same as the case where no re-disposition has been made at all, and accordingly, in such a case, the requirements necessary for an application for indirect compulsory execution under Article 30 (2) and Article 34 (1), etc. of the Administrative Litigation Act must be regarded as having been met.
Disposition
Reversed and remanded Stated in the decision
원심결정을 파기하고, 사건을 부산고등법원에 환송한다.
Unofficial English translation
The order of the court below is reversed and the case is remanded to the Busan High Court.
Form of the test
Elements stated Stated in the decision
간접강제신청에 필요한 요건을 갖춘 것으로 보아야 한다.
Unofficial English translation
must be regarded as having met the requirements necessary for an application for indirect compulsory execution.
Factors
- 아무런 재처분을 하지 아니하거나
- 종전 거부처분에 대한 취소의 확정판결의 기속력에 반하는 등으로 당연무효라면
- 이미 개발행위허가를 신청중인 경우에는 종전 규정에 따른다는 경과규정을 두고 있으므로
- 개정 법령을 적용하여 새로운 거부처분을 한 것
Unofficial English translation
• no re-disposition has been made at all, or
• if it is void by operation of law, such as where it conflicts with the binding force of the final and conclusive judgment revoking the earlier refusal disposition,
• as there is a transitional provision to the effect that where an application for permission for development activity is already pending, the prior provisions shall apply,
• having made the new refusal disposition by applying the amended statutes and regulations
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 1997. 2. 4. 자 96두70 결정(공1997상, 670)
Unofficial English translation
Supreme Court Decision 96Du70 decided February 4, 1997 (Gong 1997 Sang, 670)
Decisions referred to
[1][2] 대법원 1997. 2. 4. 자 96두70 결정(공1997상, 670), 대법원 1998. 1. 7. 자 97두22 결정(공1998상, 532)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
May the requirements for an application for indirect compulsory execution also be regarded as satisfied where the re-disposition does not contravene the binding force of the final and conclusive judgment but is unlawful on other grounds only?
We will re-examine this reading if the indirect compulsory execution provisions of Article 30 (2) and Article 34 (1) of the Administrative Litigation Act are amended, or if Supreme Court precedent on the scope of the binding force of a judgment of revocation of a refusal disposition changes.
Cross-family AI independent reading & axis check
7 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-16
In comparison with an independent reading by a different family of AI (GPT-6 Astra), which read only the original text without seeing the first reading, 7 of the 8 axes agreed, and the readings diverged on the 8th axis (Open question and revisit condition).
Axis 8 (Open question and revisit condition): Primary “May the requirements for an application for indirect compulsory execution also be regarded as satisfied where the re-disposition does not contravene the binding force of the final and conclusive judgment but is unlawful on other grounds only?” vs Independent “Where there is no transitional provision in the amended statutes protecting a prior application, does a new refusal disposition based on those amended statutes contravene the binding force of the judgment of revocation?”
The first reading asks about the possibility of indirect compulsory execution in respect of a re-disposition that is unlawful on other grounds only, without contravening the binding force, while the independent reading asks whether a refusal disposition based on amended statutes that contain no transitional provision contravenes the binding force.
재처분을 하였다 하더라도 그것이 종전 거부처분에 대한 취소의 확정판결의 기속력에 반하는 등으로 당연무효라면 이는 아무런 재처분을 하지 아니한 때와 마찬가지라 할 것이므로 이러한 경우에는 행정소송법 제30조 제2항, 제34조 제1항 등에 의한 간접강제신청에 필요한 요건을 갖춘 것으로 보아야 한다.Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The court below took the view that a re-disposition means a disposition made anew to remedy the grounds of unlawfulness set out in the final and conclusive judgment, and that if statutes are amended and enter into force after the refusal disposition, one may again refuse by citing the amended statutes as new grounds. Accordingly, it held that the new refusal disposition was a re-disposition based on a city ordinance enacted after the previous refusal disposition, and that the application for indirect compulsory execution, which requires that no re-disposition has been made, was without merit; it cited Supreme Court Decision 97Du22 decided January 7, 1998.
Supreme Court standard: The Supreme Court took the view that, since Article 10 (1) of the Supplementary Provisions to the Enforcement Decree of the Urban Planning Act and Article 3 (1) of the Supplementary Provisions to the Busan Metropolitan City Urban Planning Ordinance provide that the previous provisions apply where an application for permission for development activity is pending at the time of entry into force, a re-disposition must be made under the previous provisions in respect of a project approval application filed on April 14, 2000. The new ground for refusal was not a new ground arising from an amendment of statutes to which the binding force does not extend, and therefore the new refusal disposition was void by operation of law; the ground of insufficient documents was likewise a ground within the scope of identity with the previous disposition and thus contravened the binding force. Since Decision 97Du22 cited by the court below was a case in which there was no transitional provision and was not appropriate to be invoked, the Supreme Court reversed and remanded on the ground that the court below had misunderstood the legal principle concerning the binding force and indirect compulsory execution.
Distinguishing conditions
- Where, there being no transitional provision applying the previous provisions to a matter in which an application is pending under the amended statutes, the amended statutes as of the time of the disposition apply as they stand
- Where the new ground for refusal lacks identity of the basic facts with the previous refusal disposition and is a new ground that could not have been asserted in the previous action for revocation
- Where the defect in the re-disposition does not reach the degree of being serious and manifest and it cannot be regarded as void by operation of law
Record verification notes
Before asserting the same conclusion, one must first check whether the applicable statutes actually contain a transitional provision applying the previous provisions on the basis of the time of application, and whether the new ground for refusal is not based on a separate set of facts arising after the previous disposition.
From the official text
Points at issue
[1] 거부처분취소판결의 간접강제신청에 필요한 요건 [2] 주택건설사업 승인신청 거부처분의 취소를 명하는 판결이 확정되었음에도 행정청이 그에 따른 재처분을 하지 않은 채 위 취소소송 계속중에 도시계획법령이 개정되었다는 이유를 들어 다시 거부처분을 한 사안에서, 새로운 거부처분이 확정된 종전 거부처분 취소판결의 기속력에 저촉되어 당연무효라고 한 사례
Unofficial English translation
[1] Requirements necessary for an application for indirect compulsory execution against a judgment revoking a refusal disposition [2] A case in which, although a judgment ordering the revocation of a refusal disposition on an application for approval of a housing construction project had become final and conclusive, the administrative agency, without making the re-disposition pursuant thereto, again issued a refusal disposition on the ground that the urban planning statutes and regulations had been amended while the action for revocation was pending, and the new refusal disposition was held void by operation of law as conflicting with the binding force of the final and conclusive judgment revoking the earlier refusal disposition
Summary of the holding
[1] 거부처분에 대한 취소의 확정판결이 있음에도 행정청이 아무런 재처분을 하지 아니하거나, 재처분을 하였다 하더라도 그것이 종전 거부처분에 대한 취소의 확정판결의 기속력에 반하는 등으로 당연무효라면 이는 아무런 재처분을 하지 아니한 때와 마찬가지라 할 것이므로 이러한 경우에는 행정소송법 제30조 제2항, 제34조 제1항 등에 의한 간접강제신청에 필요한 요건을 갖춘 것으로 보아야 한다. [2] 주택건설사업 승인신청 거부처분의 취소를 명하는 판결이 확정되었음에도 행정청이 그에 따른 재처분을 하지 않은 채 위 취소소송 계속중에 도시계획법령이 개정되었다는 이유를 들어 다시 거부처분을 한 사안에서, 개정된 도시계획법령에 그 시행 당시 이미 개발행위허가를 신청중인 경우에는 종전 규정에 따른다는 경과규정을 두고 있으므로 위 사업승인신청에 대하여는 종전 규정에 따른 재처분을 하여야 함에도 불구하고 개정 법령을 적용하여 새로운 거부처분을 한 것은 확정된 종전 거부처분 취소판결의 기속력에 저촉되어 당연무효라고 한 사례.
Order
원심결정을 파기하고, 사건을 부산고등법원에 환송한다.
Unofficial English translation
The order of the court below is reversed and the case is remanded to the Busan High Court.
Provisions referred to
[1] 행정소송법 제30조 제2항, 제34조 제1항 [2] 구 도시계획법(2000. 1. 28. 법률 제6243호로 전문 개정된 것, 2002. 2. 4. 법률 제6655호로 폐지) 제46조, 제49조, 구 도시계획법시행령 부칙(2000. 7. 1.) 제10조 제1항, 행정소송법 제30조 제2항
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