더 이상 항고소송의 대상인 피고의 부작위가 있다고 볼 수 없으므로 이 사건 소는 소의 이익이 없다[각하]
Seoul Administrative Court 2012Guhap19786 ( November 30, 2012)
Moreover, the Defendant’s omission, which is the subject of an appeal litigation, cannot be deemed to exist, and thus, the instant lawsuit does not have a benefit to
The Defendant’s above request for registration of substitute lot is a affirmative disposition citing the Plaintiff’s request, and thus, it cannot be deemed that the Defendant’s omission is a subject of an appeal litigation, and thus, there is no benefit of lawsuit.
National Tax Collection Act
2013Nu354 Verification of illegality in failing to perform the duty to commission the registration of replotting
Korea
Seoul Special Metropolitan City Mayor
Seoul Administrative Court Decision 2012Guhap19786 decided November 30, 2012
January 28, 2014
February 7, 2014
1. The plaintiff's appeal is dismissed.
2. The appeal cost (including the cost resulting from the supplementary participation) shall be borne by the Plaintiff.
The judgment of the first instance shall be revoked.
It is confirmed that the omission that the Defendant did not commission the registration of replotting to the Plaintiff with respect to the registration of replotting application with respect to the registration of replotting of 1020-1 large scale 2,190.6 square meters of OO-si O-dong 1020-1,000
1. Quotation of judgment of the first instance;
The reasoning for the court's explanation concerning this case is as stated in Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act, since the reasoning for the court's decision is the same as the stated in the judgment of the court of first instance, except for the part as stated in paragraph (2) below
2. Parts in height:
In addition, the part 3, 15, 5, and 5 of the first instance judgment is as follows.
2) The defendant's assertion
Since all land after replotting does not belong to the land, it cannot be deemed that the Plaintiff has the right to file an application for a request for registration of replotting with respect to the land after replotting. Since the Defendant’s omission was resolved by filing an application for a request for registration of subdivision of land and registration of replotting with the Seoul Central District Court, the instant lawsuit is unlawful.
B. Determination
We examine the legitimacy of the instant lawsuit.
A lawsuit for confirmation of illegality of omission under Article 4 subparag. 3 of the Administrative Litigation Act is aimed at removing a passive state of omission or non-subsive response by promptly responding to an administrative agency by ascertaining that the omission is illegal, in a case where an administrative agency does not have a legal response obligation to respond to a request based on a party’s legal or logical right within a reasonable period of time, i.e., a positive or passive disposition accepting the request, or rejection or dismissal of the request, etc., even though the administrative agency has a legal response obligation to respond to such passive disposition. Furthermore, in a case where an administrative agency compels an administrative agency to take a certain disposition by affirmative or passive means by binding force of the judgment in question, and then is dissatisfied with such disposition, the administrative agency ultimately seeks to protect the rights and interests of the party. Thus, if the situation of omission is terminated by actively or passive disposition with regard to the request through the time of judgment before and after the lawsuit, the lawsuit shall lose the benefit of the lawsuit and thus, it cannot be dismissed (see Supreme Court Decision 89Nu4758, Sept. 25, 190)
In full view of the overall purport of the pleadings in each of the statements in Eul evidence Nos. 14 through 31 (including additional numbers), the defendant received a reply to the above question from the National Court Administration on January 25, 2013 by questioning about the procedure and method of entrusting the registration of replotting to the Seoul Central District Court on April 26, 2012, and on June 28, 2013. On September 5, 2013, 2013, the head of Gangnam-gu sent a written request for registration of replotting to the head of Gangnam-gu and sent a copy of the written request for registration of replotting and a copy of the written request for registration of replotting from the head of Gangnam-gu Office on September 13, 2013, and on November 18, 2013, it is recognized that the defendant received the application for registration of replotting and the request for registration of replotting to the Seoul Central District Court on April 26, 2012, and thus, the defendant's above application for registration of replotting cannot be deemed as an active interest.
3. Conclusion
If so, the lawsuit of this case is unlawful and thus, it is just to conclude this conclusion, and the judgment of the court of first instance is dismissed, and it is so decided as per Disposition.