존재하지 아니하는 행정처분을 대상으로 한 취소소송은 소의 이익이 없어 부적법하다[각하]
Busan District Court-2014-Gu Partnership-2585 (Law No. 29, 2016)
Cho Jae-2015 Sub-630 ( October 26, 2015)
A revocation suit against a non-existent administrative disposition is unlawful because there is no benefit of lawsuit
The lawsuit of this case is unlawful because it is seeking revocation of a disposition which has not been extinguished, and there is no interest in the lawsuit.
Article 15 of the Liquor Tax Act: Suspension of Sales of Alcoholic Beverages
2016Nu23233 Revocation of revocation of revocation of a comprehensive alcoholic beverage wholesale business license
2016Nu23240 (Consolidated) Revocation of a disposition to reduce the quantity of alcoholic beverages shipped;
000 Stock Companies
The Director of the Z Tax Office
Busan District Court Decision 2014Guhap2585, 2014Guhap3045 (Joint) Decided September 29, 2016
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.
1. Purport of claim
The Defendant’s revocation disposition of comprehensive liquor wholesale business license granted to the Plaintiff on August 6, 2014, and attached Form 1, September 15, 2014
Measures to reduce the volume of alcoholic beverages to each company listed in the list shall be revoked.
2. Purport of appeal
The judgment of the first instance is revoked. The plaintiff's claim is dismissed.
1. Details of the disposition;
This Court's reasoning is the same as the corresponding part of the judgment of the court of first instance. Thus, this Court's reasoning is accepted in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.
2. Whether the lawsuit of this case is lawful
If an administrative disposition is revoked ex officio, it does not exist as it loses its validity, and a lawsuit seeking revocation 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 all of the dispositions of this case ex officio on July 3, 2017 is obvious in records.
Therefore, the interest in the lawsuit is seeking the cancellation of a disposition which has not been extinguished.
Therefore, it became illegal.
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 the lawsuit of this case shall be dismissed.
The defendant shall bear the burden of the defendant.