In a revocation suit under the Administrative Litigation Act, where a previous suit is revoked and a new suit is amended to have been filed, the standard point of time to determine whether the period for filing a suit against a new suit is complied with (i.e., when a new suit is amended) / Where an administrative agency’s revocation of the previous suit and the identical disposition are substantially related to the two dispositions and the grounds for illegality alleged to exist in the previous disposition are also related to the two dispositions by cancelling the previous disposition ex officio and making the previous disposition identical in substance, while pending the litigation against revocation of the previous suit (negative)

A litigation for cancellation under the Administrative Litigation Act shall be instituted within 90 days from the date when the person becomes aware of the disposition, etc., and shall not be instituted after one year from the date of the disposition, etc. (Article 20(1) and (2) of the Administrative Litigation Act). In addition, when a previous lawsuit is withdrawn and a new lawsuit is changed to have been instituted, compliance with the period for filing a lawsuit against a new lawsuit shall, in principle, be based on the

However, in a case where a suit seeking revocation of the preceding disposition is legally filed within the filing period and the administrative agency is able to correct some errors in the language and text of the preceding disposition while continuing, and ex officio revocation of the preceding disposition and subsequent disposition is substantially identical to that of the preceding disposition, thereby having close relevance between the preceding and subsequent disposition, and where the grounds for illegality alleged to exist in the preceding disposition are likely to exist, it is unnecessary to separately consider whether the period for filing a suit seeking revocation of the subsequent disposition is complied with.

Article 20 (1) and (2) of the Administrative Litigation Act

Supreme Court Decision 2004Du7023 Decided November 25, 2004 (Gong2005Sang, 44) Supreme Court Decision 2010Du7796 Decided November 29, 2012 (Gong2013Sang, 77)

An Industry-Academic Cooperation Foundation of the Seoul National University (LLC, Attorneys Kim Un-soo et al., Counsel for the plaintiff-appellant)

The Minister of Science and ICT (Law Firm Doodo, Attorneys Kim Il-young, Counsel for defendant-appellant

Seoul High Court Decision 2017Nu86875 decided August 29, 2018

The part of the lower judgment against the Plaintiff is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. A. A. Under the Administrative Litigation Act, a revocation suit shall be instituted within 90 days from the date on which the disposition, etc. is known, and one year after the date of the disposition, etc. (Article 20(1) and (2) of the Administrative Litigation Act). In addition, when the previous lawsuit is withdrawn by modifying the purport of the claim and it is changed that the new lawsuit is filed, compliance with the period for filing a lawsuit against the new lawsuit shall be based on the time when the lawsuit is changed in principle (see Supreme Court Decision 2004Du7023, Nov. 25, 2004, etc.).

However, in a case where a lawsuit seeking revocation of a subsequent disposition is legally filed within the filing period and an administrative agency is able to correct some errors in the language and text of the prior disposition while continuing to file a lawsuit, and ex officio revocation of the prior disposition and a subsequent disposition is practically the same as that of the prior disposition, and where an illegal cause alleged to exist between the prior disposition and the subsequent disposition is identical to that of the subsequent disposition, whether the period for filing a lawsuit seeking revocation of the subsequent disposition should be determined separately (see, e.g., Supreme Court Decision 2010Du7796, Nov. 29, 2012).

B. Meanwhile, Article 25(1) of the Industrial Education Enhancement and Industry-Academia-Research Cooperation Promotion Act (hereinafter “Industrial Education Promotion Act”) provides that universities may have an organization in charge of the affairs concerning industry-academia-research cooperation in accordance with the school regulations. Article 28(3) provides that the head of the industry-academic cooperation foundation represents the industry-academic cooperation foundation and supervises the affairs under its jurisdiction under the direction and supervision of the head of the relevant university. Article 28(4) provides that the head of the university is appointed or dismissed by the head of the relevant university.

2. Review of the reasoning of the lower judgment and the evidence duly admitted by the lower court reveals the following facts.

A. The Korean Research Foundation, a foundation, (hereinafter “Korea Research Foundation”) established an addressee on the basis of Industry-Academic Cooperation Act. Around April 2015, the Korea Research Foundation (hereinafter “Seoul University”) notified the addressee of the results of an on-site inspection of the detailed settlement of accounts for the execution of research expenses in 2015 regarding the instant research task, and the results of an examination of evidence around August 2015. Meanwhile, the Plaintiff was a corporation established by Seoul National University (hereinafter “Seoul University”) based on Industry-Academic Cooperation Act, and the said on-site inspection was conducted for the Plaintiff.

B. On March 15, 2016, the Korean Research Foundation notified each of the results of the review by the sanctions evaluation group approved by the Defendant to the Nonparty (hereinafter “Nonindicted Party”) and the Seoul National University (hereinafter “Notification of the result of sanctions”). Each of the above notifications is indicated as “the Minister of Science, ICT and Future Planning,” “the person in charge of the disposition,” “the Minister of Science, ICT and Future Planning,” “the Seoul National University,” “the person in charge of the disposition,” and “(the restriction on participation in national research and development projects) 3 years, total amount of KRW 126,356,839 * additional monetary sanctions 116,667.”

C. On May 27, 2016, the Defendant issued a disposition to restrict the participation in national research and development projects against the Nonparty on three-year basis, and notified the Nonparty of the disposition to recover the research expenses of KRW 126,240,172 ( separate KRW 116,67) (hereinafter “each of the instant dispositions”) by stating the recipient as “the president of Seoul University” on the same day as “the president of Seoul University”).

D. On June 10, 2016, the Plaintiff and the Nonparty filed a lawsuit against the Defendant and the Research Foundation of Korea seeking the revocation of notification of the result of sanctions taken on March 15, 2016, which was within 90 days from the date of receiving the notification of each of the instant dispositions. The Plaintiff and the Nonparty expressed in the complaint that “the Research Foundation of Korea shall be entrusted with the authority of dispositions from the Defendant.” As such, it is unclear whether the research Foundation of Korea has been delegated with the authority of dispositions by the Defendant, etc., the Defendants would arrange the claim through the withdrawal, etc

E. The Defendant and the Korean Research Foundation referred to the notification of the result of sanctions in the reply as the instant disposition, and the notification of the result of sanctions was sent to the Nonparty as the disposition of restriction on participation in national research and development projects imposed by the Defendant against the Nonparty and the disposition of recovery of the project cost.

F. On August 31, 2016, the Defendant revoked ex officio and notified the other party to the instant disposition to be the president of the Seoul National University on the ground that the prior disposition was written in writing, and stated Article 25 of the Administrative Procedures Act regarding the prior notification and correction of the disposition in the relevant provision. On September 20, 2016, the Defendant issued a disposition to recover project costs identical with the prior disposition to the Plaintiff (hereinafter “instant subsequent disposition”).

G. On November 17, 2017, the first instance court rejected the Plaintiff’s lawsuit seeking revocation of the notification of the result of a disciplinary measure, holding that notification was a restriction on participation against the Nonparty and a disposition for recovery of project costs.

H. The Defendant, only in the preparatory brief dated May 9, 2018, which was pending in the lower court’s trial, stated that “the notice of the result of the sanctions is not a disposition but an advance notice of the disposition, each of the dispositions of this case constitutes an external disposition, and the Plaintiff’s revocation ex officio against the Plaintiff and the subsequent disposition was made.” As such, among the lawsuits in this case, the part of the Plaintiff’s claim for revocation of the notification should be dismissed.”

I. Accordingly, on May 21, 2018, the Plaintiff sought revocation of the instant subsequent disposition, and submitted an application for modification of the purport of the claim and the grounds for the subsequent disposition.

3. Examining these facts in light of the legal principles as seen earlier, it is reasonable to view that, even if the Plaintiff changed the purport of the claim to seek revocation of the subsequent disposition of this case, it is not necessary to separately consider whether the period for filing the changed lawsuit is complied with. The reasons are as follows.

A. An industry-academic cooperation foundation is a subordinate organization and a special corporation under the instruction and supervision of a university, and is in charge of affairs related to industry-academia-research cooperation. In light of the legal nature of such industry-academic cooperation foundation, in light of the content of each disposition of this case, the process of the disposition of this case, the progress of litigation, etc., the Defendant appears to have expressed that the Plaintiff, not Seoul University, was the party to the disposition, at the time of the preceding disposition, and the portion of the “Seoul University President” in the recipient’s column of the preceding disposition constitutes a clerical error, which is

B. While the Plaintiff filed the instant lawsuit by specifying the notification of the result of the disciplinary measure as the subject of the lawsuit, the purport of the lawsuit is to request the Nonparty to revoke the disposition to recover the project cost related to the use of research funds for any purpose other than that of the non-party, and the purport of the claim is clearly indicated that the subject of the disposition subject to the lawsuit and the counter-party to the disposition are to be provisionally stated until the confirmation of the subject of the disposition subject to the lawsuit

C. As long as the Defendant took the method of re-dispositioning the instant follow-up disposition after ex officio cancelling the instant follow-up disposition, the Plaintiff is in principle required to revise the subject of dispute to the instant follow-up disposition. However, given that a clerical error in the addressee’s column in the preceding disposition can be corrected by correcting the disposition pursuant to Article 25 of the Administrative Procedures Act, the follow-up disposition in the instant case is a formal separate disposition, but in substance, it is identical to the prior disposition, and there is a relationship between the subsequent disposition and the subsequent disposition after the illegal cause alleged to exist.

D. The Defendant issued a written reply that “the notice of the result of the disciplinary measure is the recovery of the project cost that was made against the Plaintiff,” and the Plaintiff maintained the notification of the result of the disciplinary measure according to the Defendant’s explanation. Therefore, even if the Defendant revoked ex officio and the instant subsequent disposition was conducted during the proceeding of the first instance trial, it is difficult to determine the revocation of the previous disposition that was not the subject of the lawsuit, following the revocation of the previous disposition that was not the subject of the lawsuit, by changing the subject of the lawsuit to the subject of the subsequent disposition of this case. Since the Plaintiff submitted an application for the alteration of the purport and cause of the lawsuit on May 21, 2018 and submitted the application for the alteration of the purport of the lawsuit on May 21, 2018, the Plaintiff did not err by the Defendant’s mistake and did not delay the Plaintiff’s lawsuit.

4. Nevertheless, the lower court determined that the Plaintiff’s lawsuit that was exchangedly changed at the lower court solely based on its stated reasoning was unlawful. In so determining, the lower court erred by misapprehending the legal doctrine on the period of filing a lawsuit, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning

5. Therefore, the part of the lower judgment against the Plaintiff is reversed, and that part of 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 on the bench.

Justices Park Sang-ok (Presiding Justice)