(영문) 부산고등법원 2017. 08. 11. 선고 2016누23479 판결존재하지 아니하는 행정처분을 대상으로 한 취소소송은 부적법함[각하]
Busan District Court-2014-Gu Partnership-3137 (Law No. 30, 2016.30)
A revocation suit against a non-existent administrative disposition is unlawful
A revocation suit against a non-existent administrative disposition is illegal because there is no interest in the lawsuit.
Article 3 of the Individual Consumption Tax Act (Revocation or Suspension of License for Liquor Sales Business)
2016Nu23479 (No. 11, 2017)
Limited Partnership ○○ Company
○ Head of tax office
on 14, 2017
November 2018
1. Revocation of a judgment of the first instance;
2. The instant lawsuit shall be dismissed.
3. All costs of the lawsuit shall be borne by the defendant.
The court's explanation on this part is the same as the corresponding part of the judgment of the court of first instance. Thus, this part of the judgment is cited in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.
2. Whether the lawsuit of this case is lawful
On the other hand, if an administrative disposition is revoked ex officio, the disposition does not become null and void, and the revocation lawsuit against a non-existent administrative disposition is unlawful as there is no benefit of lawsuit (see Supreme Court Decision 2009Du16879, Apr. 29, 2010). The fact that the Defendant revoked both the disposition and the reduction disposition of this case ex officio on July 3, 2017 and on July 10, 2017 is apparent in the record. Accordingly, the lawsuit of this case is seeking revocation of a disposition which has not already been extinguished, and thus, the lawsuit of this case was unlawful as it has no benefit of lawsuit.
3. Conclusion
Therefore, the lawsuit of this case is dismissed in an unlawful manner, and the judgment of the court of first instance, which has different conclusions, is unfair, so it is revoked and dismissed, and the total costs of lawsuit shall be borne by the defendant pursuant to Article 32 of the Administrative Litigation