[2] The period for filing a lawsuit to verify illegality of omission

[3] In a case where a party filed a lawsuit to confirm illegality of an omission within the legitimate period of filing a lawsuit, and subsequently changed the lawsuit to a lawsuit to exchange the same application, and subsequently joined the lawsuit to verify illegality of the omission, whether the period of filing a lawsuit can be deemed to have been complied with (affirmative)

[2] A lawsuit seeking confirmation of illegality of an omission shall be deemed to have a benefit to seek confirmation of illegality as long as the situation of the omission continues. Therefore, in principle, the period of filing a lawsuit shall not be restricted. However, in light of the fact that Article 20 of the Administrative Litigation Act, which provides for the period of filing a lawsuit under Article 38(2) of the same Act, applies mutatis mutandis to a lawsuit seeking confirmation of illegality of an omission. In the event that a prior trial procedure, such as an administrative appeal, has gone through

[3] In a case where a party filed a lawsuit to confirm illegality of a disposition of revocation of a disposition of revocation on the same application, but later changed the lawsuit to exchange the lawsuit to a lawsuit to revoke the disposition of revocation on the ground that there was a passive disposition, and then additionally combined the lawsuit to confirm illegality of a disposition of omission, it is reasonable to view that the period of the lawsuit has still been complied with even if the first lawsuit to confirm illegality of a disposition of revocation was brought within the legitimate period of filing a lawsuit to exchange the lawsuit to litigation

1. As to the grounds of appeal Nos. 1 and 5

In full view of Articles 8 and 38(1) of the Local Public Officials Act and Article 38-3 of the Decree on the Appointment of Local Public Officials, the appointment authority of Grade II through IV public officials shall take into account administrative performance, ability, career, major areas, personal resources, aptitude, etc., but shall undergo prior deliberation by the personnel committee. If Grade IV public officials are determined to be subject to Grade III promotion following deliberation by the personnel committee of the relevant local government and the appointment authority publicly announced the fact, the public officials have the right to be legally interested in the promotion and have the right to be able to apply for Grade III promotion to the appointment authority, and the administrative agency, upon receipt of an application for promotion through an appeal from such public officials, has the duty to respond to a passive disposition, such as accepting the application within a reasonable period of time, dismissing, or rejecting the application. Nevertheless, if an administrative agency does not take any affirmative or passive disposition with regard to the above application of the right holder, the omission by such administrative agency itself is unlawful.

According to the reasoning of the judgment below, the defendant, after the deliberation of the personnel committee, publicly announces the fact that the plaintiff was determined as the person eligible for promotion to Grade III, and then did not take any measures as to the plaintiff's application for promotion through the examination of the appeal on September 30, 2005. In light of the above legal principles, the defendant's omission is in itself illegal in light of the above legal principles.

Although it is inappropriate for the lower court to determine whether the Defendant’s failure to promote the Plaintiff was justifiable, the conclusion that the Defendant’s omission, which the Defendant did not take any measure against the Plaintiff’s application for promotion, is justifiable, and the lower court did not err by misapprehending the legal doctrine as otherwise alleged in the grounds of

2. Regarding ground of appeal No. 2

The ground of appeal on the purport that the Defendant issued an order to refuse to promote the Plaintiff on August 9, 2004 to the head of Si Folk Museum shall not be a legitimate ground of appeal, as it is asserted only in the final appeal.

3. As to the third ground for appeal

In light of the fact that the Plaintiff filed a lawsuit for confirmation of illegality of omission after undergoing the procedure for examining an appeal seeking the implementation of promotion, the lower court’s determination that rejected the Defendant’s assertion that the instant lawsuit was unlawful due to the failure to undergo the necessary pre-trial procedure is justifiable. In so doing, contrary to what is alleged in the grounds of appeal, there were no errors

4. As to the fourth ground for appeal

In light of the fact that Article 20 of the Administrative Litigation Act provides for the period for filing an action for the confirmation of illegality of omission applies mutatis mutandis to a lawsuit for the confirmation of illegality of omission, as long as the state of omission continues, the action for the confirmation of illegality of omission is not restricted in principle, but in light of the fact that Article 38(2) of the same Act provides for the period for filing an action for the confirmation of illegality of omission, a lawsuit for the confirmation of illegality of omission should be filed within the period for filing an action for the confirmation of illegality of omission provided for in Article 20 of the Administrative Litigation Act. However, if a lawsuit for the confirmation of illegality of omission is filed based on a party’s statutory or cooking right or a lawsuit for the revocation of an action for the same reason is filed, it may be deemed that there is an unclear case where the legal assessment problems based on the same factual basis are involved in the action for the confirmation of illegality of omission, and if a lawsuit for the confirmation of illegality of omission is pending, the lawsuit for the confirmation of illegality of omission becomes unlawful because it still has the nature of supplementary action for the same revocation of revocation of an action.

According to the facts duly established by the court below and the records, the plaintiff filed a request for review of the appeal with the purport that "the defendant is promoting the plaintiff to local government Grade III (Grade III)" on September 30, 2004. The above appeals review committee dismissed the plaintiff's petition on February 20, 2006. The plaintiff was served a written notice of the decision around that time. The plaintiff filed a lawsuit seeking confirmation of illegality of the omission of this case's second preliminary claim on March 8, 2006, which is the legitimate filing date of the appeal, on March 17, 2006. The second preliminary claim on August 17, 2006, was lawfully exchanged with the purport that "the defendant's refusal of promotion of Grade III to local government Grade III, was revoked on March 30, 2006." The plaintiff's second preliminary claim on July 20, 2007, which was not proved to have been remanded to the court below's court below's judgment after the correction of the plaintiff's claim of this case's second preliminary claim.

In the judgment of the court below that a lawsuit seeking confirmation of illegality of omission is not subject to a restriction on the period of filing a lawsuit, the conclusion that the lawsuit seeking confirmation of illegality of omission is legitimate in rejecting the defendant's assertion that the lawsuit seeking confirmation of illegality of omission of omission of this case is unlawful because it does not comply with the period of filing a lawsuit

5. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Hong-hoon (Presiding Justice)