조치명령처분 취소
The plaintiff's appeal is dismissed.
Expenses for appeal shall be borne by the plaintiff.
Purport of claim and appeal
The judgment of the first instance.
1. The grounds for this part of the disposition by the court are the same as the corresponding part of the judgment of the court of first instance, and thus, they are cited pursuant to the main sentence of Article 420 of the Civil Procedure Act.
2. Determination on the defense prior to the merits
A. On December 29, 2017, the Plaintiff filed the instant lawsuit on February 28, 2019 after the lapse of 90 days after being aware of the instant disposition.
On August 29, 2018, the Plaintiff filed an administrative appeal against the instant disposition, but was dismissed on the ground that “the period for filing an administrative appeal was 180 days from December 26, 2017, which was the date of disposition, exceeded the period for filing an administrative appeal.” As such, there is no justifiable reason for intending to set the period for filing an administrative appeal, and in the instant case, the period for filing an appeal cannot be deemed to be counted from the date of delivery of a written adjudication
Ultimately, the instant lawsuit is unlawful, since it was filed with the lapse of the filing period.
B. Determination 1) Article 20(1) of the Administrative Litigation Act provides that “A revocation lawsuit shall be instituted within 90 days from the date when the person becomes aware of the disposition, etc.: Provided, That where the proviso to Article 18(1) applies, or where an administrative agency is mistakenly informed that a request for administrative appeal may be filed, the period at the time when the original written adjudication is served.” Therefore, even in an exceptional case where the procedure for administrative appeal is completed, in order to calculate the period of litigation based on the date when the written adjudication is served, not on the market price of disposition but on the date when the written adjudication is served, the case must be deemed to fall under the case prescribed in the proviso to Article 20(1) of the Administrative Litigation Act. If it does not fall under such proviso, the lawsuit filed by the Plaintiff with the lapse of 90 days from the date when the person becomes aware of the disposition, etc. was served on December 29, 2017 shall be deemed to be unlawful.