Whether a final judgment rendered by a court of the first instance, other than the high court, with respect to an administrative litigation, may be filed in an informal final appeal only when both parties have agreed to withhold the right to file a final appeal and not to file an appeal subsequent to the final judgment (affirmative), and whether the said agreement ought to be written (affirmative)

Article 8(2) of the Administrative Litigation Act, Articles 29(2), 390, and 422(2) of the Civil Procedure Act

Supreme Court Decision 2002Du9582 Decided February 11, 2003, Supreme Court Decision 2013Da67921 Decided December 12, 2013

Plaintiff (Intermediate confirmation Plaintiff, Selection Party)

Korea

Busan District Court Decision 2016Guhap22835, 24091 Decided December 22, 2016

The summary appeal shall be dismissed. The costs of the summary appeal shall be borne by the plaintiff (the intermediate confirmation plaintiff, the designated party) and the designated party.

ex officio, we judge the legitimacy of a summary final appeal.

According to Articles 422(2) and 390(1) proviso of the Civil Procedure Act applied mutatis mutandis by Article 8(2) of the Administrative Litigation Act, with respect to a final judgment rendered by a court of the first instance, other than the high court, with respect to an administrative litigation, a summary appeal may be filed only when both parties have agreed not to withhold the right to appeal and not to file an appeal after the final judgment (see Supreme Court Decision 2002Du9582, Feb. 11, 2003). In this case, the agreement is necessarily required to be made in writing as a result of the application mutatis mutandis of Article 29(2) of the Civil Procedure Act by Article 390(2) of the same Act pursuant to Article 390(2) of the same Act (see Supreme Court Decision 2013Da67921, Dec. 12, 2013).

However, in the instant case, the Plaintiff (Appointed Party) did not submit a document on the agreement under the proviso of Article 390(1) of the Civil Procedure Act while filing a summary appeal against the judgment of the first instance court, and thus, the instant summary appeal is unlawful and thus, it cannot be corrected.

Therefore, without any need to decide on the non-pharmaceuticalal grounds of appeal, the appeal by the Plaintiff (Appointed Party) is dismissed, and the costs of the non-pharmaceuticalal appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

【List of Selections: omitted

Justices Kim Shin (Presiding Justice)