In a case where Party A’s head of Dong’s domicile revoked Party A’s resident registration on the ground of unauthorized transfer pursuant to Article 17-2 of the former Resident Registration Act, and Party A re-registered resident registration at the same address and sought confirmation of invalidity of the disposition ex officio, the case holding that there is a benefit of confirmation.

In a case where Gap's head of Dong at Gap's domicile revoked Gap's resident registration on the ground of transfer without permission pursuant to Article 17-2 of the former Resident Registration Act (amended by Act No. 7201 of Mar. 22, 2004; hereinafter the same), Gap re-registered his resident registration at the same domicile and sought confirmation of invalidity of the disposition of cancellation of resident registration, the case holding that a person who received the disposition of cancellation of resident registration pursuant to Article 17-2 of the former Resident Registration Act and Article 25 (1) of the former Enforcement Decree of the Resident Registration Act (amended by Act No. 18146 of Nov. 29, 2003; hereinafter the same shall apply) can raise an objection pursuant to Article 17-3 of the former Resident Registration Act, or receive relief through administrative appeal or administrative litigation, and it is impossible to retroactively lose the validity of the previous resident registration or remove it, only those who have an address within the local government and residents' rights to use property and public facilities equally during the pertinent period of time.

Articles 17-2 (see current Article 20), 17-3 (see current Article 21), and 21-4 (see current Article 40) of the former Resident Registration Act (Amended by Act No. 7201, Mar. 22, 2004); Articles 25(1) (see current Article 28(1)), 29 (see current Article 32); Articles 12 and 13(1) of the Local Autonomy Act

Plaintiff

Head of Seocheon-si ○○○ Dong

Incheon District Court Decision 2015Guhap831 Decided November 5, 2015

March 18, 2016

The plaintiff's appeal is dismissed.

Expenses for appeal shall be borne by the plaintiff.

The judgment of the court of first instance is revoked. The judgment that the defendant's disposition of ex officio transfer of unauthorized transfer to the plaintiff on June 26, 2003 is invalid.

1. Details of the disposition;

A. From May 22, 2003 to June 30, 2003, the Defendant conducted an investigation into the Plaintiff’s domicile based on Article 17-2 of the former Resident Registration Act (amended by Act No. 7201, Mar. 22, 2004; hereinafter “former Resident Registration Act”).

B. The defendant sent a peremptory notice to the plaintiff on June 11, 2003, which determined that the plaintiff did not reside in the Seocheon-gu, Seocheon-gu (hereinafter "the domicile of this case") which is the domicile of the plaintiff, and issued a peremptory notice to the plaintiff to report his resident registration matters. On June 19, 2003, the defendant announced the same contents and announced the same on June 19, 2003, and revoked the plaintiff's resident registration on June 26, 2003 (hereinafter "the disposition of this case").

C. On August 12, 2003, the Plaintiff re-registered the resident registration at the instant domicile. On the same day, the Defendant imposed a fine for negligence of KRW 50,000 on the ground that the Plaintiff failed to report the resident registration within the given period. The Defendant paid the said fine for negligence on December 12, 2003.

[Reasons for Recognition] Facts without dispute, Gap 2, 3 evidence (including each number; hereinafter the same shall apply), Eul 1-4, 14-16 evidence, the purport of the whole pleadings

2. The plaintiff's assertion

During the above investigation period, the Plaintiff was unable to hold a house for about 20 days in Ampha and was residing in the domicile of this case. The Plaintiff was aware that the Defendant was also aware of the same fact by re-issuance of the resident registration certificate in the immediately preceding investigation period. However, it was erroneous for the Plaintiff’s creditor to believe that the Defendant issued the instant disposition, and the defect is significant and apparent.

3. Determination

A. Determination as to the legitimacy of the instant lawsuit

Before determining the Plaintiff’s claim, the first instance court ex officio determined that, inasmuch as the Plaintiff re-registered the resident registration on the domicile of this case, the claim of this case did not have a benefit of confirmation because it seeks confirmation of past legal relations.

However, in light of the following circumstances, seeking confirmation of invalidity of the instant disposition is recognized as an effective and appropriate means to eliminate risks or apprehensions with respect to the current rights or legal status of the Plaintiff, and thus, the instant lawsuit has interest in confirmation.

1) The ex officio cancellation system under the former Resident Registration Act is a duty imposed upon the head of a Si/Gun/Gu in accordance with Article 17-2 of the former Resident Registration Act and Article 25(1) of the former Enforcement Decree of the Resident Registration Act (amended by Act No. 18146, Nov. 29, 2003) in order to promote convenience in the lives of residents and to properly handle administrative affairs by clearly understanding the movement of population, such as residential relations, etc., and where certain requirements are met through fact-finding, peremptory notice, etc. under the above Act and subordinate statutes, the head of a Si/Gun/Gu shall cancel the resident registration ex officio. After taking such measures, the cancellation shall be notified or announced to the person subject to cancellation within 14 days, and if the resident registration is cancelled due to failing to file a report without justifiable grounds, an administrative fine shall be imposed pursuant to Article 2

2) Accordingly, a person subject to a disposition ex officio of a resident registration may file an objection pursuant to Article 17-3 of the former Resident Registration Act, or receive relief through an administrative appeal or administrative litigation, and even if a person subject to a disposition ex officio of a resident registration re-registers pursuant to Article 29 of the former Enforcement Decree of the Resident Registration Act, the validity of the ex officio of the existing resident registration is retroactively lost or its effectiveness is deleted. Furthermore, only the person having an address within the jurisdiction of a local government becomes a resident of the local government, and has the right to use the property and public facilities of the local government, and to benefit equally from administration of the local government (see Articles 12 and 13(1) of the Local Autonomy Act). While the resident registration is completed, the Plaintiff

3) If the benefit of a lawsuit is lost solely by the fact of re-registration as determined by the first instance court, such unreasonable result may arise that the benefit of the lawsuit would be denied if the person filing an administrative litigation seeking the revocation of the ex officio disposition re-registration as required by the transaction.

4) In practice of resident registration, the head of a Si/Gun/Gu may delete the history of the ex officio disposition of resident registration only when the defects of the ex officio disposition of resident registration are significant and objective and does not delete it in other cases (see Supreme Court Decision 2007Da54023, Mar. 13, 2008). In light of the fact that the scope of remedy for infringement of rights varies depending on whether the ex officio disposition of resident registration of the past is ex officio or the circumstances leading to the recovery or re-registration in the case where the issue was whether the ex officio disposition of resident registration has an opposing power under the Housing Lease Protection Act (see Supreme Court Decision 2007Da54023, Mar. 13, 2008). Therefore, it is beneficial to eliminate legal uncertainty by removing such unlawful state in advance to prevent unnecessary disputes, as well as

5) Since a large number of legal transactions, such as real estate transactions and financial transactions, frequently uses resident registration and a certified copy or abstract of resident registration, and as long as the ex officio ex officio transfer power in the past appears externally in the resident registration and a certified copy or abstract, such fact is likely to serve as a negative factor on the credit of the ex officio cancellation, it is difficult to deem that it does not affect

B. Judgment on the merits

As seen earlier, as long as the interest in confirmation is recognized, the judgment of the court of first instance which rejected the lawsuit of this case is unfair, but it is recognized that this court has been tried to the extent that it can render a judgment on the merits of the lawsuit, and thus, it is decided not to remand the lawsuit to the court of first instance,

In order for an administrative disposition to be a void as a matter of course, it is insufficient to say that there is an illegality in the disposition. The defect is a serious violation of the important part of the law, and objectively clear. In determining whether the defect is significant and obvious, the purpose, meaning, function, etc. of the law should be considered from a teleological perspective and reasonable consideration of the specificity of the specific case itself (see Supreme Court Decision 2005Du14363, Jun. 30, 2006).

However, insofar as it is not recognized that the Defendant violated the procedures under the relevant statutes in rendering the instant disposition, the defect in the instant disposition cannot be deemed to be significant and objective solely on the grounds alleged by the Plaintiff. Therefore, the Plaintiff’s claim is without merit.

4. Conclusion

Therefore, the plaintiff's claim shall be dismissed as it is without merit. In conclusion, the court of first instance which rejected the plaintiff's lawsuit as unlawful, without examining and determining the merits. However, the judgment of the court of first instance which rejected the plaintiff's lawsuit on the ground of its illegality is unfair, but only the plaintiff appealeds the judgment of the court of first instance cannot be revoked and its claim cannot be dismissed. Thus, the plaintiff's appeal shall be dismissed. The plaintiff's appeal cost shall

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