Whether the administrative litigation of revocation of disposition to revoke the revocation of the vicarious execution is subject to the prior trial procedure (affirmative)

In the administrative litigation of revocation of disposition of revocation of vicarious execution, the principle of sub-determination is applied.

Article 7 of the former Administrative Vicarious Execution Act (amended by Act No. 3755 of Dec. 15, 1984); Article 2 of the former Administrative Litigation Act (amended by Act No. 3754 of Dec. 15, 1984)

Supreme Court Decision 81Nu293 delivered on July 27, 1982

Plaintiff

The head of Busan Gu

Daegu High Court Decision 83Gu346 delivered on May 24, 1984

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

In general, according to Article 2 of the Administrative Litigation Act, in order to file an appeal litigation ex officio, it shall go through the source of lawsuit in accordance with the so-called principle of ex officio. According to Article 7 of the Administrative Vicarious Execution Act, it shall be allowed to bring an appeal against the vicarious execution. Thus, the principle of ex officio ex officio is applied to the administrative litigation against the revocation of disposition to revoke the vicarious execution of this case (see Supreme Court Decision 81Nu293, Jul. 27, 1982).

Therefore, even though the court below should examine and determine whether the plaintiff had undergone the above procedure prior to the examination of the merits, the court below did not find any trace of the examination conducted by the court below according to the records.

Therefore, the judgment of the court below is erroneous in the application of the law on the method of appeal as a result of failing to exhaust all the deliberation, and thus, it is not necessary to decide on the grounds of appeal, and it shall not be reversed by punishing for this reason.

Therefore, the judgment of the court below is reversed and remanded. It is so decided as per Disposition by the assent of all participating judges.

Justices Jeon Soo-hee (Presiding Justice)