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(영문) 서울고등법원 2016.10.11 2016누35689

시정요구처분취소

Text

1. Revocation of the first instance judgment.

2. The instant lawsuit shall be dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

Reasons

1. The reasoning of the judgment of the court of first instance and the reason why the court should explain this part is the same as that of paragraphs (1) and (2) of the reasoning of the judgment of the court of first instance, and thus, this part is cited in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of

2. Judgment on the Defendant’s main defense

A. According to the Defendant’s instant disposition of this case’s defense, the instant network operator took measures to block access to the instant website between October 17, 2014 and October 29, 201, and the Plaintiff was aware of the instant disposition by recognizing the fact of blocking access around that time. As such, the instant lawsuit filed after the lapse of 90 days thereafter is unlawful.

B. 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.; “the date when the person becomes aware of the disposition, etc.” in this context refers to the date when the person becomes aware of the disposition, etc. through notice, public notice, or other methods, and does not mean the date when it is realistic and specific, abstractly known, but it is sufficient that a certain type of administrative disposition exists, and it does not require that the specific contents or disposition is unlawful (see, e.g., Supreme Court Decision 63Nu158, Mar. 31, 1964). In addition, even if one year has passed from the date of disposition, a third party, who is not the other party to the administrative disposition, is not immediately known of the disposition, barring any special reason, and thus, it is possible to file a lawsuit within 90 days from the filing period of the lawsuit, as stipulated in the proviso of Article 20(2) of the Administrative Litigation Act.