(영문) 광주고등법원 2021.7.22. 선고 2021누10360 판결

The judgment of the first instance is revoked. The defendant's disposition of demanding warning against the plaintiff on March 3, 2020 against the plaintiff shall be revoked.

Reasons

1. Quotation of the first instance judgment

The reasons why the court should explain this case are added to the "related Acts and subordinate statutes of the court of first instance". The reasons why the plaintiff added to the "related Acts and subordinate statutes of the court of first instance", and the reasons why the court of first instance, except for the decision that the plaintiff emphasized or added to this court, are as stated in the part of the reasoning of the court of first instance. Thus, the court of first instance, which rejected the plaintiff's assertion, is just in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act (other matters asserted by this court as the grounds for appeal, are

2. Additional determination

A. The plaintiff's assertion

In full view of Article 26 of the Administrative Procedures Act, Article 27 (1), (3) and (6) of the Administrative Appeals Act, the proviso to Article 20 (1) of the Administrative Litigation Act, and the proviso to Article 20 (1) of the Administrative Litigation Act, if an administrative agency fails to comply with the duty of disclosure under Article 26 of the Administrative Procedures Act, it shall be deemed that Article 27 (6) of the Administrative Appeals Act is not applied or analogically applied to an administrative litigation, but shall not be deemed as the date of the disposition, etc. if 1

B. Determination

1) In full view of Articles 18(1) and 20(1) of the Administrative Litigation Act, and Article 27(1) of the Administrative Appeals Act, when the method of immediately filing a suit for revocation is chosen with the knowledge of the existence of an administrative disposition, a suit for revocation shall be filed within 90 days from the date on which the relevant disposition is known, and when the method of filing a suit for revocation is selected, a suit for revocation shall be filed within 90 days from the date on which the relevant disposition is known, and a suit for revocation shall be instituted within 90 days from the date on which the written ruling on the administrative appeal is served. Therefore, where a suit for revocation is not instituted without filing a suit for revocation within 90 days from the date on which the relevant disposition is known, the subsequent suit for revocation shall be deemed to be unlawful after the lapse of the period for filing the suit, and shall not be deemed to have been re-compliance with the period for filing the suit (see Supreme Court Decision 201Du1871, Nov. 24, 2011).

2) As acknowledged earlier, the Plaintiff was served with a written disposition stating the purport of the instant disposition on March 4, 2020, and the Plaintiff was aware of the existence of the instant disposition. Since the instant lawsuit was filed on July 14, 2020, which is clear from the 90th day after the lapse of 90 days as stipulated in Article 20(1) of the Administrative Litigation Act, the instant lawsuit was brought in excess of the period for filing the lawsuit, and thus, is illegal. Thus, even if the Defendant’s failure to notify the procedure for filing the administrative appeal at the time of the instant disposition violates Article 26 of the Administrative Procedures Act, it does not provide for the effect of such violation, and the Administrative Litigation Act does not provide for the effect due to the non-notification of the period for filing the administrative appeal, contrary to Article 27(6) of the Administrative Appeals Act, Article 27(6) of the Administrative Appeals Act does not apply to the claim for administrative appeal, and it cannot be viewed as a provision that is naturally applied to the administrative litigation (see, e.g., Supreme Court Decision 2007Du1675.

3) Therefore, the Plaintiff’s assertion that Article 27(6) of the Administrative Appeals Act shall be applied or applied mutatis mutandis to the filing period of an administrative litigation is without merit.

3. Conclusion

The lawsuit of this case shall be dismissed by adjoining the court below. The judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed as it is without merit.