(영문) 서울행정법원 2016.1.22. 선고 2014구합71276 판결

In the first place, on August 4, 2014, the defendant's 'the 'private teaching institute' against the plaintiff on August 4, 2014 has revoked the disposition that 2,11,598,950 won from the proceeds of sale of fundamental property for education (redulc kindergarten) is "the revenue reduction from the corporate accounts as school expenses."

Preliminary, on May 16, 2014, the Defendant’s disposition that “A private teaching institute for a school juristic person for the Plaintiff is subject to a disposition of KRW 2,111,598,950 from the corporate accounting to its revenue from the corporate accounting is revoked.”

Reasons

1. Details of the disposition;

A. The Plaintiff is a school juristic person that has established and operated the Seodaemun-gu Seoul Central Government University and the Red School Kindergarten attached to the Seodaemun-gu University at 28, Yongsan-ro 90-ro.

B. From September 25, 2013 to October 25, 2010 of the same year, the Board of Audit and Inspection conducted an audit of the implementation status of university education capacity strengthening policies with 390 universities across the country, including Western universities, and around April 2014, the Defendant notified the Defendant of the audit result, and on May 16, 2014, the Defendant notified the Plaintiff of the fact that “the Plaintiff shall take revenue measures from the proceeds of fundamental property for education (red red kindergarten) sale of KRW 2,11,598,950 from the corporate accounting to the corporate accounting of school expenses” (hereinafter referred to as “Article 1 disposition”). Upon receiving a request for reexamination from the Board of Audit and Inspection, the Defendant informed the Board of Education of the content that “An application for reexamination is before the Ministry of Education by May 19, 2014 at the request for reexamination,” and did not otherwise notify the details of the methods of filing an administrative appeal or administrative litigation.

C. On May 19, 2014, the Plaintiff filed an application for reexamination with the Defendant under Article 36 of the Board of Audit and Inspection Act, and the Defendant rendered a decision to dismiss the application for reexamination to the Plaintiff on August 4, 2014, by deeming that the Plaintiff’s application for reexamination was groundless (hereinafter “instant disposition”).

D. On October 31, 2014, the Plaintiff filed the instant lawsuit seeking revocation of disposition Nos. 1 and 2.

[Recognition] Facts without dispute, Gap evidence Nos. 1 and 2 (including virtual number), the purport of the whole pleadings

2. Determination on this safety defense

A. Main Safety Defenses

1) As a matter of the primary claim, Article 2 is merely a mere notification of fact and cannot be deemed a disposition, and the part of the lawsuit in this case seeking revocation of the second disposition is unlawful.

2) In relation to the conjunctive claim, the first disposition was unlawful since the period for filing the lawsuit has expired. As such, the part seeking revocation of the first disposition among the instant lawsuit is also unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Judgment on the main claim

According to Article 36 (2) of the Board of Audit and Inspection Act, if the competent Minister, appointment authority or appointment-recommendation authority, or the head of the supervisory agency or the head of the agency concerned who has been requested to make a disposition under Articles 32, 33 and 34 by the Board of Audit and Inspection, deems that the request is illegal or unjust, he/she may request the Board of Audit and Inspection to review it within one month from

In full view of the aforementioned statutory provisions, a request for reexamination is a procedure that allows the Board of Audit and Inspection who conducted the audit to review whether the audit results or the requirements thereunder are lawful and reasonable. The second disposition that rejected a request for reexamination is merely based on the premise that it maintains the first disposition of which notice of audit results is given, and it does not affect an administrative appeal or an administrative litigation on the first disposition. As such, it cannot be deemed as an exercise of public authority or an equivalent administrative action that causes a new change in the Plaintiff’s rights and duties, and thus, it cannot be deemed as subject to an independent appeal (see Supreme Court Decision 2010Du8676, Nov. 15, 2012). Therefore, the part that seeks revocation of the second disposition among the instant lawsuit is unlawful, since the disposition is not subject to an independent appeal litigation.

2) Determination on the conjunctive claim

As seen earlier, the Board of Audit and Inspection which has audited the audit and inspection to review the legitimacy and validity of the audit results or the requirements thereunder on its own. In addition, the application for reexamination is treated differently from the administrative appeal under the Administrative Appeals Act or the special administrative appeal under other Acts and subordinate statutes, and the application for reexamination does not necessarily have to be provided for in the previous trial procedures prior to filing a lawsuit seeking revocation of the said requirements. Therefore, the special exception for the period for filing a lawsuit may not be deemed to apply to the application for reexamination, and therefore, the period for filing a lawsuit seeking revocation shall not be calculated from the date when the result of the application for reexamination is notified (see Supreme Court Decision 2010Du8676, Nov. 15, 2012).

Ultimately, the part seeking revocation of the first disposition among the instant lawsuit was filed on October 31, 2014, which was 90 days after the lapse of 90 days from May 16, 2014, which deemed that the Plaintiff was aware of the first disposition, and thus, is unlawful, even with the filing period.

3. Conclusion

Therefore, since the lawsuit of this case is deemed to be a single appearance and is unlawful, it is decided as per Disposition by the assent of all participating Justices.