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(영문) 대법원 1992. 4. 10. 선고 91누7798 판결

[건물철거대집행계고처분취소][공1992.6.1.(921),1608]

Main Issues

(a) The processing of and direction-setting for interpretation of written applications for administrative appeals, the purport of which is not clear;

B. The case holding that it is reasonable to view that a notice by the second second method was an administrative disposition and written as if it was sought the revocation thereof, even if it was known as an administrative disposition and stated in the written application as if it was sought the revocation thereof, and it is also reasonable to view that the judgment by the inquiry agency included the purpose of seeking the revocation of the first method of appeal, and that the judgment by the inquiry agency

Summary of Judgment

A. A claim for administrative appeal, which is a requirement for the transfer of administrative litigation, is a written act that does not require strict form and should be corrected if it is possible to correct it. A claim for administrative appeal filed by a claimant who has no expertise in law and knowledge is not clear. In such a case, the administrative agency needs to interpret and process the document so that it can be the benefit of the presenter as much as possible.

B. The case holding that in the case where the plaintiff filed an administrative appeal with the purport that the notification by the second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second, barring any special circumstance, the plaintiff does not attempt to go through the second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second order, and the order of the administrative agency

[Reference Provisions]

(a)Article 19(a) of the Administrative Appeals Act; Article 23(b) of the same Act;

Reference Cases

A. Supreme Court Decision 85Nu635 delivered on September 20, 198 (Gong198, 1339) 90Nu851 delivered on June 8, 1990 (Gong1990, 1473). Supreme Court Decision 83Nu1 delivered on July 26, 1983 (Gong1983, 1357) (Gong1991, 878) 90Nu5962 delivered on January 25, 1991 (Gong1991, 878) 90Nu10216 delivered on December 24, 191 (Gong192, 708)

Plaintiff-Appellant

Plaintiff

Defendant-Appellee

Osan City (Attorney Kim Tae-Gyeong, Counsel for defendant-appellant)

Judgment of the lower court

Seoul High Court Decision 91Gu2061 delivered on June 27, 1991

Text

The part of the judgment of the court below regarding the claim for revocation of the disposition on July 20, 1990 shall be reversed, and that part of the case shall be remanded to the Seoul High Court.

The plaintiff's remaining appeals are dismissed.

The costs of appeal dismissed shall be assessed against the plaintiff.

Reasons

As to the Plaintiff’s ground of appeal

According to the reasoning of the judgment below, on July 20, 190, the court below ordered the plaintiff to remove the extension portion of this case under Article 42 (1) of the Building Act and Articles 2 and 3 (1) of the Administrative Vicarious Execution Act, and ordered the plaintiff to voluntarily remove the extension portion of this case and ordered the plaintiff to voluntarily remove the extension portion of this case in the form of sending the second order as of August 24 of the same year, and notified the plaintiff to voluntarily remove the extension portion of this case in the form of sending the second order as of August 24 of the same year. The court below determined that the part of the above disposition of this case is unlawful on the ground that there was no evidence to support that the plaintiff received the second order and thereafter filed an administrative appeal and dismissed the plaintiff's claim as of January 10, 1991, but there was no evidence to support that the plaintiff had lawfully undergone an administrative appeal as of July 20, 190.

Article 19 of the Administrative Appeals Act provides that an appeal for adjudication shall be filed by a document stating the name and address of a petitioner, the administrative agency that is the respondent, the ruling authority, the contents of the disposition subject to the appeal, the date the disposition is known, the purport and reason for the appeal, the notification of the administrative agency which made the disposition, the existence of the disposition, and the contents thereof. According to Article 23 of the same Act, if an appeal for adjudication is unlawful but it is possible to correct the defects, and if the correction is made, a legitimate administrative appeal shall be filed from the beginning. In light of the purpose of the administrative appeal system and the contents of these provisions, an appeal for adjudication, which is a requirement for the transfer of administrative litigation, shall be made if the correction is possible, as a written act that does not require strict legal knowledge, is not clear. In such a case, the administrative agency should interpret and process the written appeal to the extent possible (see Supreme Court Decision 90Nu851, Jun. 8, 190).

According to the records, the plaintiff filed an administrative appeal on September 12, 1990, which is against the principle of reliance protection and proportionality with respect to the above extension portion. The plaintiff's second appeal order and the second appeal order were issued on July 20, 1990, and the second appeal order and the second appeal order were also issued on September 12, 199. In this case, the plaintiff's second appeal order and the second appeal order were stated on the ground that the second appeal order and the second appeal order were issued on July 29, 200, and the second appeal order were issued on the ground that the second appeal order and the second appeal order were revoked. The plaintiff's second appeal order and the second appeal order were not related to the second appeal order and the second appeal order were not related to the second appeal order and the second appeal order were not related to the second appeal order and they were not related to the second appeal order and the second appeal order's second appeal order and the second appeal order were not related to the second appeal order's rejection of the above appeal order. The plaintiff's second appeal order and the second appeal order were not related to the second appeal order.

The Plaintiff filed an appeal regarding the part of the judgment below regarding the claim for revocation of the revocation of the disposition on August 24, 1990 and December 10 of the same year, but this part of the judgment below did not contain any indication in the grounds of appeal, and thus dismissed cannot be exempted.

For the above reasons, the part of the judgment of the court below regarding the claim for revocation of the revocation of the disposition on July 20, 1990 shall be reversed, and that part of the case shall be remanded to the court below for further proceedings consistent with this Opinion. The remaining appeal shall be dismissed, and the costs of appeal concerning the dismissal of appeal shall be assessed against the losing party

Justices Yoon Young-young (Presiding Justice) Park Young-dong Kim Jong-ho

심급 사건
-서울고등법원 1991.6.27.선고 91구2061
본문참조조문