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(영문) 서울고등법원 2020.02.06 2019누68918
부작위위법확인
Text

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The purport of the claim and appeal is the purport of the appeal.

Reasons

1. The reasoning of the judgment of the court of first instance, which cited the reasoning of the judgment of the court of first instance, is the same as that of the judgment of the court of first instance, and thus, the same shall be quoted in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of

2. The lawsuit of this case must be dismissed as it is obvious that the lawsuit of this case is unlawful and its defects cannot be corrected.

The judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed as it is without merit.

[2] Article 8(2) of the Administrative Litigation Act provides that the provisions of the Civil Procedure Act shall apply mutatis mutandis to matters not specifically provided for in the Administrative Litigation Act with respect to the administrative litigation. The Civil Procedure Act provides that "if an action is unlawful and its defects cannot be corrected, such action may be dismissed by judgment without holding any pleadings (Article 219)." The above provisions are located in Part II (Procedure for First Instance), not in Part II (Procedure for First Instance), and may also apply to an appellate court under the system thereof. Further, separate from the above provisions, the Civil Procedure Act provides that "if an action is unlawful and its defects cannot be corrected, an appeal may be dismissed by judgment without holding any pleadings (Article 413)." This is a separate provision in the appellate court in consideration of the fact that the requirements for appeal in addition to the requirements for appeal are met together (Article 413). Accordingly, the appellate court shall dismiss the lawsuit without holding any pleadings, on the ground that it is improper and the defects cannot be corrected as in this case, the court of first instance may dismiss it without holding any pleadings, but may still dismiss an appeal by applying Article 8(2).

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