존재하지 아니하는 행정처분을 대상으로 한 취소소송은 부적법함.[국패]
Busan District Court Decision 2016Guhap20921 ( October 28, 2016)
A revocation suit against a non-existent administrative disposition is illegal.
If an administrative disposition is revoked, such disposition shall lose its validity and no longer exists, and a revocation lawsuit against a non-existent administrative disposition is illegal as there is no benefit of lawsuit.
Busan High Court 2016Nu23875
○ Liquor Co., Ltd.
○ Head of tax office
oly, 2017.14
1, 2017.08
1. Revocation of a judgment of the first instance;
2. The instant lawsuit shall be dismissed.
3. All costs of the lawsuit shall be borne by the defendant.
1. Purport of claim
The Defendant’s imposition of value-added tax for the second period of February 2011 against the Plaintiff on January 5, 2015 is revoked, respectively, KRW 4.340.80, and value-added tax for the first period of January 2012.
2. Purport of appeal
The judgment of the first instance is revoked. The plaintiff's claim is dismissed.
1. Details of the disposition;
The court's explanation in this part is the same as the corresponding part of the judgment of the court of first instance. Thus, this part of the judgment is cited in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.
2. Whether the lawsuit of this case is lawful
On the other hand, if an administrative disposition is revoked ex officio, the disposition does not become null and void, and a lawsuit seeking revocation against a non-existent administrative disposition is unlawful as there is no benefit of lawsuit (see Supreme Court Decision 2009Du16879, Apr. 29, 2010). The fact that the Defendant revoked all of the dispositions of this case ex officio on July 10, 2017 is apparent in the record. Accordingly, it is obvious that the lawsuit of this case is seeking revocation of a disposition that has not already been extinguished, and thus, the benefit of lawsuit was nonexistent and thus, became unlawful as there was no benefit of lawsuit.
3. Thus, the lawsuit of this case is dismissed as unlawful, and the judgment of the court of first instance, which has different conclusions, is unfair, and thus the lawsuit of this case is dismissed, and the total costs of lawsuit shall be borne by the defendant under Article 32 of the Administrative Litigation Act.