납골당설치신고반려처분 취소판결 후 재반려처분의 적법 여부- 서울행정법원 2009. 10. 9. 선고 2007구합21945 판결 등과 관련하여

Recently, many reports have been received from the administrative agency by the religious organizations for the installation of ossuary within the religious group area. In many cases, the administrative authority refuses to report the installation based on civil complaints such as emotional anxiety of nearby residents. If the complaint is rejected, the applicant may file an administrative litigation against the office of administrative for the cancellation of Return of Administrative Disposition. This case deals with a dispute as to going further from the headquarters of the cancellation order than a dispute as to whether or not the previous declaration can be repatriated again due to the amendment of the related law in with the judgment of the cancellation case that the administrative office lost. The issues in this case are: ① whether or not the notification of the installation of ossuary is a "report requiring acceptance" by the administrative agency ; ② a revision of the statute after the first rejection. The administrative authority shall decide whether it is reasonable to repeat the refusal to apply for the transfer of the revised laws and regulations and the permission standard for a new reason(whether it is in contravention of the ruling of cancellation decision of rejection). In relation to this issue, I have pointed out that, in relation to point ①, there is no clear distinction as to whether or not a declaration is a “report requiring acceptance” However, considering the legislative intent of 「act on funeral etc. 」regarding basic law of the installation of a charnel house, the social nature of the charnel house installation and the public interest to the residents and the necessity of the regulation through examination of the installation of the ossuary, it is not the so-called “self-completing declaration” which is to be a “declaration that requires acceptance” Therefore, the administrative agency could refuse the acceptance for inappropriate reports that do not meet the requirements. As for the issue ②, it is a matter related to the binding power as the effects of the ruling of cancellation litigation. According to the previous conventional explanations and the intent of judicial precedent, the statute is amended after the first rejection. In case of enforcement, The administrative agency may, in principle, do refusal disposition of the previous application with the revised statutes and licensing standards for new reasons. And that such disposal corresponds to the re-disposition prescribed in 30 paragraph 2 of the Administrative Procedure Act. This disposition will be difficult to say that it is contrary to the binding power of the previous judgment.