(영문) 서울행정법원 2012.12.20. 선고 2012구합11621 판결

The judgment on request for disciplinary action under Article 32 of the Board of Audit and Inspection Act, which was made by the Defendant on October 17, 201, and on March 15, 2012 (referred to as " March 16, 2012," recorded by the Plaintiff in the complaint, seems to be erroneous) shall be revoked, respectively.

Reasons

1. Basic facts

A. The Defendant was an audit institution established under Article 97 of the Constitution of the Republic of Korea and the Board of Audit and Inspection Act with respect to B from March 3, 2011 to the 25th day of the same month.

B. On October 17, 201, the defendant requested the head of the Seoul Special Metropolitan City B head to take charge of or take overall charge of the management and sale of land allotted for development outlay in the position of the head of the Seoul Special Metropolitan City City, "C, D, and the head of each city planning and team of the B-gu Seoul Special Metropolitan City, the head of the same division, and the head of the same Gu who is in office as the head of the Gu, for disciplinary action against the above three persons pursuant to Article 32 (1) and (10) of the Board of Audit and Inspection of the Local Public Officials Act on the ground that they sold the land allotted for development recompense in recompense for development outlay (hereinafter referred to as "land allotted for development recompense in this case") to the redevelopment zone and violated the duty of good faith under Article 48 of the Local Public Officials Act.

C. Accordingly, the Plaintiff-gu Seoul Special Metropolitan City Mayor filed a request for reexamination with the Defendant pursuant to Article 36(2) of the Board of Audit and Inspection Act, and the Defendant dismissed the said request for reexamination on March 15, 2012 (hereinafter “instant decision for reexamination”).

[Reasons for Recognition] The written evidence Nos. 7, 8, and 9 and the purport of the whole pleadings

2. Whether the lawsuit of this case is lawful

A. The defendant's main defense

The plaintiffs are reasonable to sell the selling price at KRW 45.2 billion based on the appraised value conducted by the redevelopment association of this case upon the request for purchase by the redevelopment association of this case. However, the defendant's demand for disciplinary action against the plaintiff Eul et al. on the ground that D, C, and A (hereinafter "the plaintiff et al.") caused damage to the Seoul Special Metropolitan City, the owner by determining the selling price based on the appraised value of the redevelopment association of this case which is much lower than the market price is illegal. As such, the defendant asserted that the decision on the request for disciplinary action and retrial of this case should be revoked. The request for disciplinary action of this case is merely a prior and intermediate act between the non-legal administrative agencies and thus does not constitute a disposition subject to appeal, and the head of Seoul Special Metropolitan City who is merely an administrative agency does not have the ability to become the subject of rights and obligations, and there is no plaintiff A et al.'s standing to sue as to the decision of this case.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

The Defendant asserts that the request for disciplinary action of this case is merely a prior and intermediate act between administrative agencies with no legal capacity and thus does not constitute an appeal litigation. Article 32(11) of the Board of Audit and Inspection Act recognizes the compulsory power of the request for disciplinary action of the Board of Audit and Inspection by stipulating that “the head of the agency which received a request for disciplinary action, reprimand or dismissal from the Board of Audit and Inspection shall take a disposition in accordance with the pertinent procedure by the date determined by the Board of Audit and Inspection Act” and thus, the request for disciplinary action of this case is not merely a notification or recommendation of facts, or presentation of opinion, but also an exercise of public authority directly affecting the rights and duties of interested parties and thus, it is subject to appeal litigation. Therefore,

In principle, an administrative disposition, which is the object of an appeal litigation, refers to an act under the public law of an administrative agency, which is an act directly related to the rights and obligations of the people, such as ordering the establishment of rights or the burden of obligations, or directly causing other legal effects with respect to a specific matter. Thus, an act, etc., which does not directly cause legal changes in the legal status of the other party or related persons, such as actions, intermediation, solicitation, and de facto notification, inside the administrative agency, cannot be subject to an appeal litigation (see, e.g., Supreme Court Decision 96Nu6202, Jul. 10, 1998). Therefore, an internal act, interim disposition, or between administrative agencies, in principle, cannot be deemed as an administrative disposition subject to an appeal litigation. However, even in an interim disposition, if the rights of the people are restricted

The decision on the request for disciplinary action and review of this case was made by the Defendant to the head of the Seoul Special Metropolitan City B/Seoul Special Metropolitan City pursuant to Article 32(1) of the Board of Audit and Inspection Act, and the Mayor of Seoul Special Metropolitan City requested a review on the request for disciplinary action against the Defendant pursuant to Article 36(2) of the Board of Audit and Inspection Act

Article 32 (11) of the Board of Audit and Inspection Act provides that the head of an agency in receipt of a request for disciplinary action, reprimand, or request for dismissal from the Board of Audit and Inspection shall take a disposition in accordance with the pertinent procedure until the date determined by the Board of Audit and Inspection. However, the meaning of the provision that "shall take a disposition in accordance with the relevant procedure" is that the head of the agency concerned must refer the person subject to disciplinary action (hereinafter referred to as "person subject to disciplinary action") to the disciplinary committee or the personnel committee (hereinafter referred to as "Disciplinary committee, etc.") and cannot be interpreted that the person must take a disciplinary action or the kind of disciplinary action requested by the Board of Audit and Inspection is limited to the disciplinary action. In addition, if the head of the agency in question or the disciplinary committee are bound by the request for disciplinary action, it is not recognized as unlawful or reduced in light of the fact that it fails to comply with the request for disciplinary action by the Board of Audit and Inspection, and it does not necessarily lead to a very unreasonable result that it is immediately unlawful from the date of receipt of such request within 10 days from the date of receipt of such request.

Ultimately, the only legal effect of the request for disciplinary action against a person subject to disciplinary action or the head of the relevant agency is referred to the disciplinary committee, etc. The Board of Audit and Inspection Act as well as the Board of Audit and Inspection Act refers to the only legal effect of the request for disciplinary action or the head of the relevant agency. However, there may be no evidence that the person subject to disciplinary action can be a disadvantage to any status of the person subject to disciplinary action, and it can be decided not to take disciplinary action as a result of deliberation by the disciplinary committee, etc. Thus, it cannot be deemed that the request for disciplinary action of the Board of Audit and Inspection does not directly affect any direct legal effect against the person subject to disciplinary action (it cannot be deemed that the person subject to disciplinary action has any disadvantage if the request for disciplinary action was not actually made) and it is reasonable to view that the interests of the person subject to disciplinary action are infringed only when the administrative agency takes disciplinary action by the request for disciplinary action (see, e.g., Supreme Court Decision 70Nu82, Sept. 22, 1970).

Furthermore, an appeal under the Health Agency and the Administrative Litigation Act against the existence of the party capacity of the Mayor of Seoul Special Metropolitan City.

A lawsuit is brought against an administrative agency’s “disposition or omission” (Article 3 subparag. 3 of the Administrative Litigation Act) and an administrative litigation is subject to the provisions of the Civil Procedure Act pursuant to Article 8(2) of the Administrative Litigation Act, so in order to file an appeal litigation, it must have the general capacity to be the subject of the lawsuit as in the civil litigation. Therefore, a natural person and a juristic person generally recognized as a party capacity, and an unincorporated association or foundation may become a plaintiff in an appeal litigation, but an administrative agency or an institution of a juristic person which has no capacity to be a party cannot become a plaintiff in an appeal litigation. Thus, the Mayor of Seoul Special Metropolitan City, who is merely an administrative agency having no capacity to be a party, cannot file an appeal suit seeking the revocation of the request

Article 40 (2) of the Board of Audit and Inspection Act provides that the Board of Audit and Inspection may file an administrative suit against the judgment of the Board of Audit and Inspection as a party, so it is reasonable to interpret Article 40 (2) of the Board of Audit and Inspection Act as an administrative litigation against the judgment of the Board of Audit and Inspection. However, the part seeking the cancellation of the request for disciplinary action and retrial in this case in this regard by the Plaintiff-gu Seoul Special Metropolitan City is unlawful in that it is not possible to institute an administrative litigation against the original disposition on the premise of the disposition on the object of request for reexamination (original disposition) and can only institute an administrative litigation against the judgment on the retrial (see, e.g., Supreme Court Decision 84Nu91, Apr. 10, 1984; Supreme Court Decision 84Nu91, Apr. 10, 1984).

3. Conclusion

The plaintiffs' lawsuits of this case are all unlawful and dismissed.