[토지수용재결처분취소][공1993.5.1.(943),1178]
(a) Whether an administrative action that seeks revocation in the sense of declaring the invalidity of an administrative disposition must meet the requirements for filing a lawsuit seeking revocation (affirmative)
(b) The case rejecting the lawsuit on the ground that the judgment of the court below which rendered a judgment on the principal claim with the lapse of the period for filing the lawsuit for revocation was reversed and remanded
(a) even in the case of an administrative litigation seeking revocation in the sense of declaring the invalidity of an administrative disposition, it shall meet the requirements for filing a revocation suit, such as compliance with the filing period;
B. The case which rejected the judgment of the court below which rendered a judgment on the merits of a claim with the lapse of the period for filing a revocation suit, based on its original judgment.
A. Articles 18 and 20 of the Administrative Litigation Act; Article 407 of the Civil Procedure Act
A. Supreme Court Decision 84Nu175 delivered on May 29, 1984 (Gong1984, 1208) 87Nu219 delivered on June 9, 1987 (Gong1987, 1159) 90Nu6279 delivered on December 26, 199 (Gong191, 667). Supreme Court Decision 87Nu1045 delivered on January 17, 198 (Gong1989, 308)
[Judgment of the court below]
Central Land Tribunal and one other
Seoul High Court Decision 89Gu10243 delivered on June 10, 1992
The part of the judgment of the court below concerning the primary claim shall be reversed and the lawsuit shall be dismissed in this part.
The appeal on the conjunctive claim shall be dismissed.
All costs of a lawsuit shall be borne by the plaintiff.
1. First of all, in the case of an administrative litigation seeking the revocation of the original decision ex officio with respect to the plaintiff's primary claim, the plaintiff must comply with the requirements for filing a lawsuit seeking the revocation of the original decision (see, e.g., Supreme Court Decisions 84Nu175, May 29, 1984; 87Nu219, Jun. 9, 1987; 90Nu6279, Dec. 26, 1990; 90Nu6279, etc.), so long as the plaintiff seeks the revocation of the decision of this case by its primary claim, the plaintiff must comply with the period of filing a lawsuit under Article 75-2 of the Land Expropriation Act even if the plaintiff seeks the revocation of the original decision. According to the records, even after the plaintiff filed an administrative litigation seeking the revocation of the original decision, the plaintiff's claim for the revocation of the decision of this case, which goes beyond the peremptory period of November 1, 1990, and thus, the court below's judgment is unlawful.
2. The grounds of appeal on the part of the judgment of the court below as to the conjunctive claim are all relevant to the merits, which cannot be asserted as a legitimate grounds of appeal against the judgment below. The grounds of appeal are without merit.
3. Therefore, the part of the judgment of the court below regarding the main claim shall be reversed, and the party members shall directly decide on it, and the appeal concerning the conjunctive claim shall be dismissed, and the total costs of the lawsuit shall be borne by the losing plaintiff, and it is so decided as per Disposition with the assent of all participating Justices.