근거법령의 추가･변경에 있어서의 처분사유의 추가･변경 제한 법리 - 대법원 2024. 11. 28. 선고 2023두61349 판결을 중심으로 -

The Supreme Court’s ruling on October 25, 1983, in case 83Nu396, first introduced the “identity of the fundamental-factual relationship” as the criterion for determining whether to allow the addition or modification of the grounds for disposition by administrative authority. The principle is to judge based on whether the underlying social facts are fundamentally identical, focusing on the specific facts prior to their legal evaluation. If the administrative authority only adds or changes the legal basis of the disposition, or merely specifies the initial grounds for disposition without altering the specific facts presented at the time of the disposition, it is not considered as adding or changing the grounds for disposition anew. This forms the specific legal principle of the Supreme Court regarding the restriction on the addition or modification of the grounds for disposition. However, despite the fact that the grounds for disposition are determined by the combination of two elements: the factual requirements that include the specific facts underlying the disposition and the specific application of the legal provisions that led to the disposition based on those facts, the traditional Supreme Court’s legal principle of restricting the addition or modification of grounds for disposition, known as the “identity of the fundamental-factual relationship,” primarily judges based on whether the underlying social facts are fundamentally identical, focusing on the specific facts prior to their legal evaluation. Consequently, this places the standard on determining the identity of the factual requirements that include specific facts. As a result, there has been no clear standard presented for cases where the “legal basis of the disposition,” which is another element of the grounds for disposition, is added or changed, leading to inconsistent judgments in different cases. In other words, analyzing the traditional Supreme Court rulings on cases involving the addition or modification of the legal basis of a disposition reveals inconsistency in their conclusions. Some cases determined that there was an identity of the fundamental-factual relationship because there was no change in the facts, allowing the addition or modification of the legal basis. Other cases concluded that such addition or modification was not permissible because it was tantamount to making another disposition, regardless of any change in the facts. There are also cases where, despite no change in the facts, the addition of a legal provision was seen as altering the nature of the act from a binding to a discretionary one, thus not recognizing the identity of the underlying social facts. These inconsistent processes indicate that the existing standards for the limits and restrictions on the addition or modification of grounds for disposition do not provide a clear answer. The ruling in question added a new criterion to the existing legal principle of restricting the addition or modification of grounds for disposition. It determined that even if the identity of the underlying social facts is recognized, the addition or modification of grounds for disposition is not permitted when a normative evaluation of those facts and a change in the legal basis of the disposition necessitate altering the original content of the disposition. However, it also concluded that if there is explicit consent from the party subject to the disposition, an exception can be made, allowing the substantive validity of the added or modified grounds for disposition to be examined and judged during the litigation process. This ruling appears to aim at overcoming the ambiguity in the Supreme Court’s interpretation criteria regarding the traditional standard of determining the identity of fundamental-factual relationships. It seems to actively embrace the view from the ongoing discussions about the limits of adding or modifying grounds for disposition, which suggests leaving the decision to allow such additions or modifications to the plaintiff's discretion. However, the ruling also normatively interpreted the legal basis added as a ground for disposition, determining that such addition was not merely a trivial change in the legal basis but posed a completely different issue in terms of evaluation aspects and stages, yet still concluded that the addition or modification of such a legal basis meant there was “no identity of fundamental-factual relationships.” Ultimately, the case in question involved the plaintiff intending to construct a building for which they applied for building use permission and a building permit, with the intended structure being a construction waste intermediate processing facility and the business through the building being an intermediate treatment business for separating, sorting, and crushing construction waste. There was no change in these factual aspects. Therefore, in this case, while the identity of the underlying social facts and the fundamental-factual relationships is recognized, the addition or modification of the grounds for disposition should be restricted due to considerations of protecting the trust, predictability, and defense rights of the party under the disposition. Meanwhile, the ruling concluded that if there is explicit consent from the party subject to the disposition, it is possible to permit the examination and judgment of the substantive validity of the added or modified grounds for disposition during the litigation process, even for any reason, including cases where there is no identity of the fundamental-factual relationship. If, as in this ruling, the addition or modification of grounds for disposition can be made based solely on the explicit consent of the party under the disposition, regardless of the recognition of the identity of the fundamental-factual relationship, the burden on the court to determine the identity of the fundamental-factual relationship practically diminishes or disappears. This structure places the burden of decision for the implications of whether giving or withholding consent solely on the party involved. Consequently, it leads to concern that this may shift the burden of resolving the complex and challenging interpretative issue of determining the identity of the fundamental-factual relationship entirely onto the party under disposition.