[건축물관리대장발급거부처분위법확인][집38(4)특,333;공1991.2.1.(889),496]
Whether an administrative agency may file a lawsuit seeking confirmation of illegality of an omission where the administrative agency rendered a rejection disposition against a party's application (negative)
A lawsuit seeking confirmation of illegality of omission under Article 4 subparagraph 3 of the Administrative Litigation Act is permitted in a case where an administrative agency does not take a certain measure within a reasonable period of time against a party's request despite the existence of a legal obligation to do so, and the administrative agency's disposition against the party's request is nonexistent. Thus, in a case where an administrative agency rendered a disposition of refusal against the party's request, a lawsuit seeking revocation against the disposition of refusal shall be filed, and a lawsuit seeking confirmation of illegality of omission, which is premised on the absence
Article 4 subparag. 3 of the Administrative Litigation Act
Attorney Kim Jong-soo et al., Counsel for the defendant-appellant
The head of Gangnam-gu Seoul Metropolitan Government
Seoul High Court Decision 89Gu7476 delivered on April 26, 1990
The judgment below is reversed and the case is remanded to Seoul High Court.
Bain ex officio.
On May 22, 1989, the court below acknowledged that the plaintiff applied for the issuance of a certified copy of the building management ledger to the defendant on the ground that the defendant rejected the above application on the 26th of that month on the ground that the above building management ledger was in an incomplete building ledger and the perusal and the delivery of a certified copy was closed. The defendant is a civil petition falling under Article 2 (2) 3 of the Civil Petitions Treatment Regulation (Presidential Decree No. 12598 of Dec. 31, 1988) and the defendant is legally obligated to immediately handle the certified copy of the building management ledger of this case on the ground that the defendant's failure to issue the certified copy of the building management ledger of this case is illegal and thus, it is accepted the plaintiff's claim for confirmation of illegality.
However, a lawsuit seeking confirmation of illegality of omission under Article 4 subparagraph 3 of the Administrative Litigation Act is permitted in a case where an administrative agency does not take a certain measure within a reasonable period of time despite the legal obligation of the administrative agency to take a certain measure against the party's request, and the administrative agency's disposition against the party's request is nonexistent. Thus, in a case where an administrative agency rendered a disposition of refusal against the party's request, a lawsuit seeking revocation against the disposition of refusal shall be filed, and a lawsuit seeking confirmation of illegality of omission under the premise
In this case, according to the facts established by the court below, the defendant's rejection disposition against the plaintiff's application for the issuance of a certified copy of the plaintiff's building management ledger is apparent, and thus, the plaintiff may not seek the revocation of the above rejection disposition but may not seek confirmation of illegality of omission. Therefore, the court below's decision cannot maintain it because it accepted the plaintiff's application with excessive points.
Therefore, the judgment of the court below is omitted and remanded. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Kim Sang-won (Presiding Justice) Lee Jong-won (Presiding Justice)