Suwon District Court-2012-Gu Partnership-172 ( July 5, 2012)

Benefits of a lawsuit seeking confirmation of illegality of an omission

In light of the purpose of a lawsuit seeking confirmation of illegality of an omission and the purport of the system, the administrative agency’s active or passive disposition with respect to the application through the time before and after the institution of the lawsuit is rendered, and thus, if the omission is terminated by the time of judgment, it shall lose the benefit of the lawsuit and thus, it is impossible

Article 45 (Procedures for Seizing Real Estate, etc.)

2012Nu29617 Verification of illegality of a request for registration of replotting

Korea

AAA Corporation

July 15, 2014

September 16, 2014

1. Revocation of a judgment of the first instance;

2. The instant lawsuit shall be dismissed.

3. All costs of the lawsuit shall be borne by the defendant.

1. Purport of claim

On June 17, 2011, the plaintiff confirmed that the omission of the defendant with respect to the application for the registration of land substitution filed against the defendant for the registration of land substitution, which was made to the defendant with respect to the 1118.9 square meters prior to the 392 OO-dong, O-si,

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Basic facts and Plaintiff’s assertion

The court's explanation on this part is identical to the statement on the reason of the judgment of the court of first instance, except for the case where "the application was made (hereinafter "the application in this case") with "the defendant did not take any measure as to the application in this case" as "the application in this case was made (hereinafter "the application in this case")", and therefore, it shall be accepted as it is in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Determination on the legitimacy of the instant lawsuit

In a case where an administrative agency does not have a legal obligation to respond to a passive disposition based on a citizen’s legal or sound right, i.e., affirmative action citing, dismissing, or rejecting an application based on a citizen’s legal or sound right, despite the existence of a legal obligation to respond to such an omission, the purpose of a lawsuit is to promptly respond to an administrative agency’s response and remove a passive state of omission or non-opportune by promptly responding to the administrative agency’s response. Furthermore, in a case where an administrative agency makes an administrative agency take a disposition, etc., and objects again to the pertinent disposition, etc., based on the binding force of the judgment in question, the administrative agency ultimately intends to protect the citizen’s rights and interests by opposing the pertinent disposition, etc. Thus, if a situation of omission is terminated by the administrative agency’s active or passive disposition prior to and after the filing of the lawsuit, the relevant lawsuit shall lose the benefit of the lawsuit and thus, it cannot be exempted (see Supreme Court Decision 89Nu4758, Sept. 25, 1990).

According to the statements Nos. 3 and 4-1, the defendant may recognize the fact that he/she entrusted the registration of land substitution to the registry office of the Seoul Central District Court on July 13, 2012 and October 22, 2012 after the judgment of the court of first instance was rendered. According to the above facts of recognition, the defendant shall be deemed to have been dissolved by taking an affirmative action corresponding thereto against the application of this case, and therefore, the lawsuit of this case shall be deemed to have lost the benefit of lawsuit.

3. Conclusion

Therefore, the judgment of the court of first instance, which concluded that the lawsuit of this case is unlawful and dismissed, is unfair, and thus, it is so decided as per Disposition by the assent of all participating Justices to dismiss the lawsuit of this case.