[주민등록전입신고거부처분위법확인][공1993.6.15.(946),1471]
Whether an action for confirmation of illegality of omission can be brought against an administrative agency’s rejection disposition (negative)
A lawsuit seeking confirmation of illegality of omission under Article 4 subparagraph 3 of the Administrative Litigation Act is permitted in a case where an administrative agency does not take a certain measure within a reasonable period of time despite the legal obligation of an administrative agency to take a certain measure against a party’s request, and the administrative agency’s disposition against the party’s request is nonexistent. Thus, in a case where an administrative agency rendered a disposition of refusal against a party’s request, a lawsuit seeking revocation against a disposition of refusal is not filed but a lawsuit seeking confirmation of illegality of omission, which is premised on
Article 4 subparag. 3 of the Administrative Litigation Act
[Plaintiff, Appellant] Plaintiff 1 and 1 other (Law Firm Domin, Attorney Park Jae-soo, Counsel for plaintiff-appellant-appellant-appellant-appellant-appellant-appellant-appellant-appellant-Appellee-Appellee-Appellee-Appellant-Appellee-Appellee-Appellant-Appellee-Appellant-Appellee-Appellee-Appellant-Appellee-Appellee-Appellant-Appellee-Appellee-Appellant-Appellee-Appellee-Appellant-Appellee-Appellee-Appellant-Appellee-Appellee-Appellee-Appellee-Appellant-Appellee-Appellee-Appellant-Appellee-Appellant-Appellee-Appellee-Appellant-Appellee-Appellee-Appellant-Appellee-Appellee-
Plaintiff
The number of attorneys-at-law of Seocho-gu Seoul Metropolitan Government Head of Seocho-gu
Seoul High Court Decision 90Gu3067 delivered on July 26, 1991
The judgment of the court below is reversed.
The case is remanded to Seoul High Court.
Judgment ex officio is made.
In light of the purport of Article 6(1) of the Resident Registration Act and Article 14(1)3 of the same Act, Article 14(3) of the Resident Registration Act, the lower court found that the Plaintiff, along with his family members, moved to the without permission of the instant case, and died on December 16, 1989, and returned the resident registration card transferred without acceptance of the move-in report to the Dong Office on the ground that it cannot be determined as the address under the Resident Registration Act, and that the Defendant failed to accept the move-in report on the ground that the said vinyl was not capable of being designated as the address under the Resident Registration Act. In light of the purport of the Rules, Article 14(1)3 of the Resident Registration Act and Article 7(1) of the Resident Registration Act and Article 14(3) of the same Act and Article 14(1)9 of the same Act, the resident with the intention of residing for at least 30 days, must file a move-in report. Accordingly, the head of the Dong entrusted with the move-in report pursuant to Article 1 of the Enforcement Decree.
However, a lawsuit seeking confirmation of illegality of omission under Article 4 subparagraph 3 of the Administrative Litigation Act is a lawsuit seeking confirmation of illegality of omission where an administrative agency does not take a certain measure within a reasonable period of time despite the existence of a legal obligation to take a certain measure against a party's application, and where the administrative agency's disposition against the party's application is not in existence. Thus, a lawsuit seeking revocation against a party's rejection disposition should be filed, and a lawsuit seeking confirmation of illegality of omission cannot be filed on the premise that there is no administrative disposition (see, e.g., Supreme Court Decision 90Nu4266, Dec. 11, 1990; 90Nu9391, Nov. 8, 1991).
In this case, according to the facts established by the judgment of the court below, since it is apparent that the defendant made a rejection disposition against the plaintiff's moving-in report, the plaintiff can only file a claim for the revocation of the above rejection disposition, and it cannot be filed for the confirmation of illegality of the above rejection disposition. Thus, even though the lawsuit in this case is obviously illegal, the court below accepted the plaintiff's claim with excessive points. Thus, the court below did not err by misapprehending the legal principles on the rejection disposition or the litigation on the illegality of omission.
Therefore, without examining the grounds of appeal by the Defendant’s attorney, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.
Justices Yoon Jae-ho (Presiding Justice)