[1] Whether a revocation lawsuit may be instituted without the previous trial procedure against the disposition of imposition of excess ownership charges on the same housing site in the previous year (negative)

[2] Whether a request for administrative appeal filed with a ruling authority without going through a disposition agency is legitimate (affirmative)

[3] Whether a revocation lawsuit may be instituted without filing an administrative appeal where a public official belonging to a ruling authority, who is not a disposition authority, has mistakenly notified that it is not necessary to undergo an administrative appeal (affirmative)

[1] The obligation to pay the individual's excessive ownership of the housing site arises independently each year during the period of possession of the housing site exceeding the upper limit of each household. Thus, the previous imposition and subsequent imposition are separate dispositions. Even if the housing site is identical with the person liable for payment, the price of the housing site subject to imposition by each imposition period according to changes in the officially announced individual land price, and the rate of imposition varies depending on the transitional period from the date when the housing site falls under the subject of imposition, and thus, the dispute over the disposition of imposition may vary each other. Thus, the above imposition cannot be deemed as the "disposition carried out by step for the same purpose or for the same purpose" under Article 18 (3) 1 of the Administrative Litigation Act or subparagraph 2 of the same Article. Further, even if the above imposition and imposition are in common, the inquiry agency of the previous imposition and imposition procedure shall not make a decision with a conviction or opinion formed by the previous data, but shall make a new decision based on the previous evidence and opinion, so even if the previous imposition and imposition procedure had not been followed after going through the previous procedure.

[2] Article 17(1) of the former Administrative Appeals Act (amended by Act No. 5000 of Dec. 6, 1995) provides for the procedure of filing an administrative appeal via the disposition agency. The applicant’s interest is seeking to give the disposition agency an opportunity to consider re-domination for the applicant’s interest. Thus, even if the claimant voluntarily renounces his/her interest and immediately filed an administrative appeal with the ruling agency, the request for administrative appeal is legitimate.

[3] When the provision of Article 18 (3) 4 of the Administrative Litigation Act provides an exception to the principle of administrative appeal transfer so that an administrative agency may institute a revocation lawsuit without filing an administrative appeal, even without filing an administrative appeal. Thus, even if a ruling agency, other than a disposition agency, has issued such erroneous notice, it is possible to institute a revocation lawsuit without filing an administrative appeal by analogy and applying the provision of Article 18 (3) 4 of the Administrative Litigation Act by analogy and application. In determining whether there is any erroneous notice by the ruling agency, the determination shall be based on substance in light of the person’s organizational status and duties, specific circumstances leading to the relevant speech and behavior, and the credibility of the applicant for administrative appeal.

[1] Article 18 (3) of the Administrative Litigation Act, Article 19 of the Act on the Ownership of Housing Sites / [2] Article 17 (1) of the former Administrative Appeals Act (amended by Act No. 5000 of Dec. 6, 1995) / [3] Article 18 (3) 4 of the Administrative Litigation Act, Article 15 of the Framework Act on National Taxes

[1] Supreme Court Decision 94Nu4653 delivered on Nov. 8, 1994 (Gong1994Ha, 3292) / [2] Supreme Court Decision 83Nu435 delivered on May 28, 1985 (Gong1985, 934) Supreme Court Decision 92Nu3892 delivered on Nov. 10, 1992 (Gong1993Sang, 148), Supreme Court Decision 92Nu15000 delivered on May 11, 1993 (Gong1993Sang, 1741) / [3] Supreme Court Decision 84Nu593 delivered on Apr. 23, 1985 (Gong1985, 800), Supreme Court Decision 99Nu1964989 delivered on Apr. 28, 1992 (Gong1965, Nov. 26, 1965)

Plaintiff (Attorney Lee Jong-soo et al., Counsel for plaintiff-appellant)

The head of Eunpyeong-gu Seoul Metropolitan Government

Seoul High Court Decision 94Gu30944 delivered on February 8, 1995

The part of the lower judgment against the Plaintiff is reversed, and that part of the case is remanded to the Seoul High Court.

We examine the grounds of appeal.

The obligation to pay charges on an individual's excessive ownership of a housing site (hereinafter referred to as "charges") arises independently during each imposition period during the ownership of a housing site in excess of the upper limit by a household. Thus, the previous imposition and subsequent imposition are separate dispositions. Even if the housing site subject to imposition are identical to the person liable for payment, the price of the housing site subject to imposition according to each imposition period depending on changes in the officially announced individual land price, and the rate of imposition may vary depending on the transitional period from the date on which the housing site subject to imposition is subject to imposition, so the contents of the dispute over the imposition may vary. Thus, the above imposition and subsequent imposition cannot be deemed as "the same type of case" as provided in Article 18 (3) 1 of the Administrative Litigation Act or "the phased progress for the same purpose" as provided in Article 18 (3) 2 of the same Act, and even if the above imposition and subsequent imposition are common, the previous imposition and subsequent imposition were conducted within the scope of 9 years prior to the previous imposition and subsequent imposition and subsequent imposition procedures after the lapse of the final imposition procedure.

The court below erred in the misapprehension of legal principles as to the imposition of charges for the imposition of two lots from March 2, 1992 to June 1, 1993 (hereinafter referred to as "the first imposition disposition") conducted on the plaintiff with respect to the housing site subject to two lots, such as 27.8 square meters among 258 square meters in Eunpyeong-gu, Seoul ( Address 1 omitted), and 225 square meters, and the second imposition disposition for the imposition of charges for the imposition of charges from June 2, 1993 to June 1, 1994 (hereinafter referred to as "the second imposition disposition"), although the housing site is identical with the person liable for payment and its issues are identical, it does not constitute "the same kind of disposition" as provided in Article 18 (3) 1 of the Administrative Litigation Act or "the first imposition disposition for the same purpose" as provided in subparagraph 2 of the same paragraph, and there is no error in the misapprehension of legal principles as seen above.

However, Article 17(1) of the Administrative Appeals Act (amended by Act No. 5000 of Dec. 6, 1995) provides for an exception to the principle of ex officio for an administrative appeal via a disposition agency for the benefit of an applicant is intended to protect public trust in administration. Thus, even if an applicant voluntarily renounces his/her interest and immediately requests a ruling agency for an administrative appeal, the appeal is legitimate (see Supreme Court Decisions 83Nu435, May 28, 1985; 92Nu1500, May 11, 1993; 92Nu1500, May 11, 1993; 92Nu1500, etc.). Further, if an administrative agency falsely notifies an administrative agency that the provision of Article 18(3)4 of the Administrative Litigation Act need not go through an administrative appeal, it should be determined not by an administrative appeal but by analogy of the authority of the ruling agency in light of Article 18(3)14 of the Administrative Litigation Act.

However, according to the records, although the plaintiff prepared a written request for the administrative appeal on the disposition immediately after the second disposition and tried to receive it directly to the Central Land Expropriation Committee, the ruling authority, the non-party, who is a public official in charge of the administrative appeals affairs, already made an administrative appeal on the second disposition, and filed the lawsuit in this case seeking the revocation of the first disposition and the second disposition without filing a separate request for the administrative appeal on the second disposition, based on the belief that it is not necessary to separate it. Thus, in such a case, it shall be deemed that the ruling authority made erroneous notification that it is not necessary to go through the administrative appeal, and the part seeking the revocation of the second disposition among the lawsuit in this case shall also be deemed legitimate.

Therefore, the judgment of the court below which held that the second disposition should still be subject to an administrative appeal on the ground that a public official belonging to the ruling authority, who is not the above disposition agency of the non-party, is a public official belonging to the ruling authority, and that he does not have any status or authority to externally express his public opinion, is erroneous in the misapprehension of legal principles as to the exception of the transfer principle under Article 18 (3) 4 of the Administrative Litigation Act.

Therefore, the part of the judgment below against the plaintiff is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Yong-hun (Presiding Justice)