[택지초과소유부담금부과처분취소][공2000.1.1.(97),80]
[1] Whether an attack or defense method that was not asserted in the previous trial procedure may be asserted in the administrative litigation procedure (affirmative)
[2] Whether a claim is modified under the Civil Procedure Act in an administrative litigation (affirmative)
[3] Whether the disposition of imposition can be extended to seek revocation of the entire disposition of imposition of the charge for excess ownership of a housing site, which is a single administrative disposition, after going through the pre-trial procedure and seek revocation of the disposition of imposition only with respect to the above amount in the administrative litigation (affirmative)
[1] In determining whether an administrative litigation has gone through a prior trial procedure, unless the allegations in the prior trial procedure and in the administrative litigation are completely different from those in the previous trial procedure, the parties shall not necessarily agree, and the parties shall be entitled to submit the grounds that the parties did not have claimed in the prior trial procedure as an attack and defense method.
[2] The modification of a lawsuit stipulated in Articles 21 and 22 of the Administrative Litigation Act is specially recognized by the law, and it does not reject the modification of a lawsuit under the Civil Procedure Act. Thus, the plaintiff of the administrative litigation may modify the purport or cause of the claim to the extent that it does not change the foundation of the claim pursuant to Article 235 of the Civil Procedure Act applied mutatis mutandis under Article 8
[3] Even if the Constitutional Court’s decision that the Act on the Ownership of Housing Site is in violation of the Constitution, the purport of the disposition is legitimate because it constitutes a modification of the lawsuit filed without a change in the basis of the claim within the same scope of the same disposition, even though it was extended to seek revocation of the disposition for imposition only in the administrative litigation, which is subject to a prior trial procedure.
[1] Articles 18, 19, 26, and 27 of the Administrative Litigation Act / [2] Articles 8(2), 21, 22, and 27 of the Administrative Litigation Act / [2] Articles 8(2), 27 of the Administrative Litigation Act / [3] Articles 8(2), 21, 22, and 27 of the Administrative Litigation Act / [3] Articles 8(2), 27 of the Administrative Litigation Act, Article 235 of the Civil Procedure Act
[1] Supreme Court Decision 84Nu211 decided Jun. 12, 1984 (Gong1984, 1304), Supreme Court Decision 87Nu903 decided Feb. 9, 198 (Gong1988, 533), Supreme Court Decision 90Nu943 decided Nov. 13, 1990 (Gong1991, 118), Supreme Court Decision 90Nu4938 decided Nov. 27, 1990 (Gong1991, 262), Supreme Court Decision 91Nu7088 decided Apr. 14, 1992 (Gong192, 1630), Supreme Court Decision 96Nu754 decided Jun. 14, 1996 (Gong97989 decided Nov. 196, 199)
Plaintiff
The head of Yongsan-gu Seoul Metropolitan Government
Seoul High Court Decision 98Nu6878 delivered on July 22, 1999
The appeal is dismissed. The costs of appeal are assessed against the defendant.
The grounds of appeal are examined.
In determining whether an administrative litigation had gone through the pre-trial procedure, unless the arguments in the pre-trial procedure are completely different from those in the administrative litigation, the parties concerned can submit the grounds that the plaintiff did not have asserted in the pre-trial procedure as an attack and defense method (see Supreme Court Decision 84Nu211, Jun. 12, 1984; Supreme Court Decision 87Nu903, Feb. 9, 198), and an alteration of the lawsuit prescribed in Articles 21 and 22 of the Administrative Litigation Act is particularly recognized by the law, and it is not rejected the alteration of the lawsuit under the Civil Procedure Act, so the plaintiff in the administrative litigation can change the purport or cause of the claim within the scope of the pre-trial procedure without changing the grounds for appeal pursuant to Article 235 of the Civil Procedure Act, which is applicable mutatis mutandis pursuant to Article 8(2) of the Administrative Litigation Act. Thus, even if the plaintiff raised objection only to some amount of the charges imposed on possession in excess of the housing site, which is an administrative disposition, and thereafter, sought revocation of the original disposition within the Constitutional Court's determination.
Therefore, the appeal is dismissed and the costs of appeal are assessed against the losing defendant. It is so decided as per Disposition by the assent of all participating Justices.
Justices Cho Cho-Un (Presiding Justice)