[행정처분취소][공1983.11.15.(716),1612]
(a) An administrative disposition subject to an appeal litigation;
(b) A lawsuit seeking revocation of disposition for which value-added tax is not refunded;
A. An administrative disposition, which is the object of an appeal litigation as prescribed in Article 1 of the Administrative Litigation Act, is a disposition under the public law of an administrative agency, and refers to a specific act that affects the rights and obligations of the people with respect to a specific matter. Thus, whether it is an act (affirmative) or omission (negative) or an administrative agency should be an act conducted by the administrative agency, and it shall not be deemed that
B. In the case of seeking revocation of the disposition of the Defendant (the director of the tax office) who did not refund the value-added tax, if the Plaintiff did not request a refund of the tax amount to the Defendant prior to that request, it cannot be deemed as identical to the rejection disposition. Accordingly, the above lawsuit is unlawful as it constitutes a lawsuit seeking revocation of the Defendant’s non-act
(a) Article 1(b) of the Administrative Litigation Act; Article 1 of the Value-Added Tax Act;
East Petroleum Chemical Co., Ltd., Counsel for the next full-time lawyer
Head of Ulsan District Office
Daegu High Court Decision 81Gu167 delivered on January 25, 1983
The appeal is dismissed.
The costs of appeal shall be borne by the plaintiff.
The grounds of appeal by the Plaintiff’s attorney are examined.
The administrative disposition, which is the object of an appeal litigation under Article 1 of the Administrative Litigation Act, is a disposition under the public law of an administrative agency, and refers to a specific act that affects the rights and obligations of the people with respect to a specific matter. Thus, in an administrative litigation, the administrative act of an administrative agency, which is the object of an administrative agency’s determination of illegality, is limited to an act (affirmative), omission (negative), or omission) or an act of an administrative agency, and is not an existence of mere existence of an act. In other words, the court can ex post facto determine whether there is a certain act of an administrative agency and the act is appropriate to the laws and regulations, and even if there was no act of an administrative agency, it can not be determined whether an administrative agency should actively perform any act before it.
In this case, the plaintiff asserts that the defendant sought revocation of the disposition that did not refund the value-added tax of this case to the plaintiff, and that the plaintiff did not apply for the refund of the above tax amount to the defendant, so it cannot be viewed as the rejection disposition. Thus, the lawsuit of this case constitutes a lawsuit seeking revocation of the defendant's non-act and is therefore illegal.
In the same purport, the judgment below is just and it cannot be said that there is an error of law by misunderstanding the legal principles of rejection disposition like the theory of lawsuit. The argument is groundless.
Therefore, the appeal is dismissed, and the costs of the appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Kim Jung-soo (Presiding Justice) and Lee Jong-young's Lee Jong-young