Where the head of the Gu who is merely entrusted internal matters files an administrative disposition under his/her name and administrative litigation against such administrative disposition, the eligibility for the defendant

Where the Mayor of Seoul Special Metropolitan City entrusts the head of the Gu with the authority to accept the report of a non-exclusive licensee prescribed in paragraphs (3) and (4) of the Enforcement Decree of the Grain Management Act (Presidential Decree No. 9155, Sept. 5, 1978) within his/her authority, the head of the Gu has committed an unlawful act of the head of the Gu to issue a disposition of non-acceptance in his/her name, but the administrative litigation against the non-acceptance disposition shall be the defendant

Article 16 of the Grain Management Act; Article 3 of the Addenda to Article 14(1)1 of the Enforcement Decree of the Act; Article 14(4) of the Addenda to Article 14(1)1 of the Enforcement Decree; Articles 1 and 3 of the Administrative Litigation Act

Plaintiff 1 and nine others

Seoul Special Metropolitan City Mayor

Seoul High Court Decision 79Gu167 delivered on March 19, 1980

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. According to Article 16 of the Grain Management Act, a person who intends to engage in the business of processing grain as a raw material shall obtain permission from the Government under the conditions as prescribed by the Presidential Decree, and Article 14 (1) 1 of the Enforcement Decree of the same Act provides that a person who intends to engage in the business of processing grain as a raw material shall be engaged in the powder processing business (referring to the business of manufacturing powder using grains other than documents as raw material) and obtain permission from the Minister of Agriculture and Fisheries. Meanwhile, Article 21 of the same Act provides that the authority of the Minister of Agriculture and Fisheries under this Act shall be delegated to the Mayor of Seoul Special Metropolitan City, the Mayor of Busan Metropolitan City, or the Do governor under the conditions as prescribed by the Presidential Decree. Article 18 (1) 4 of the Enforcement Decree of the same Act provides that the Minister of Agriculture and Fisheries shall delegate to the Mayor of Seoul Special Metropolitan City, the Mayor of Busan Metropolitan City, or the Do governor the authority of the Minister of Food and Drug Affairs concerning the permission of the kind processing business of grain, the large-scale business (referring to Chapter 5 of the Enforcement Decree).

2. However, according to the records, the head of Seoul Special Metropolitan City Mayor may recognize the fact that the head of the competent Gu, who received a report from an unauthorized processor under the amended Enforcement Decree of the above Act, delegated the permission of small grain processing business to the head of the competent Gu. Thus, the administrative disposition that the head of the Gu, who did not pass after the internal delegation from the head of the Seoul Special Metropolitan City Mayor, decided the non-acceptance under his name, shall be deemed illegal. However, unless there are special provisions in Articles 1 and 3 of the Administrative Litigation Act, the administrative litigation is filed against the administrative agency that issued the above disposition to the defendant. Thus, the head of the competent Gu, who did not accept the report in this case, must seek cancellation, modification, or invalidation, and the head of the competent Gu, who did not comply with the above disposition in this administrative litigation, shall not become the defendant. Nevertheless, the decision of the court below, which rejected the report of the plaintiffs without permission by the head of the competent Gu, shall be deemed to be a disposition without the authority of grave and apparent, and it shall be deemed null and void and void.

Therefore, the judgment of the court below is reversed and remanded to the court below for a new trial. It is so decided as per Disposition by the assent of all participating Justices.

Justices Jeong Tae-won (Presiding Justice)