[1] Method of determining whether an administrative agency’s act is subject to appeal litigation and method of determining whether an administrative agency’s act constitutes “disposition” in a case where it is unclear whether it constitutes “disposition”

[2] Whether a new rejection disposition is a case where a party again filed an application to the effect that a new application was filed, but the administrative agency again rejected such application (affirmative)

[1] The term “disposition”, which is the object of an appeal litigation, refers to the exercise or refusal of public authority as an enforcement of law with respect to a specific fact by an administrative agency, and other corresponding administrative actions (Article 2(1)1 of the Administrative Litigation Act). Whether an act by an administrative agency may be subject to an appeal litigation cannot be determined abstractly and generally. In specific cases, it shall be determined individually by taking into account the content and purport of the relevant Acts and subordinate statutes, the subject, content, form, and procedure of the act, the substantial relation between the act and the disadvantage suffered by the interested party, such as the other party, the principle of administration in the rule of law, and the attitude of the administrative agency or interested party related to the act. Where it is unclear whether an act by an administrative agency constitutes “disposition”, a normative determination ought to be made by taking into account the perception and predictability of the other party who has

[2] The rejection disposition against a request for a beneficial administrative disposition is established by clearly expressing the intention of the competent administrative agency to reject the request of the parties. If the parties make a request again after a rejection disposition, then the competent administrative agency's rejection of the request shall be deemed a new rejection disposition if the purport of the request is to be a new one, regardless of the title of the request. Unless there are special provisions that limit the period of application to the disposition criteria publicly announced in advance by the relevant statutes or the administrative agency, the re-request shall not be deemed a new rejection disposition. Even if there are special provisions that limit the period of application, there is no legal ground to deny the re-request, and even if there are special provisions that limit the period of application, it

[1] Article 2 (1) 1 of the Administrative Litigation Act / [2] Article 2 (1) 1 of the Administrative Litigation Act

[1] Supreme Court en banc Decision 2008Du167 Decided November 18, 2010 (Gong2010Ha, 2279), Supreme Court Decision 2016Du33537 Decided October 25, 2018 (Gong2018Ha, 2254) / [2] Supreme Court Decision 2017Du52764 Decided April 3, 2019 (Gong2019Sang, 988)

Plaintiff (Attorney Hwang Woo et al., Counsel for the plaintiff-appellant)

Korea Land and Housing Corporation and one other (Law Firm Erasing, Attorneys Choi Sung-soo, Counsel for the plaintiff-appellant)

Seoul High Court Decision 2020Nu30162 decided September 18, 2020

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

The grounds of appeal are examined.

1. Case summary and key issue

A. Review of the reasoning of the lower judgment and the record reveals the following circumstances.

(1) The Defendant Korea Land and Housing Corporation (hereinafter “Defendant Corporation”) is the project implementer of the Incheon Land and Housing Site Development Project (hereinafter “instant project”) in which the public inspection of the designation of the planned housing site development area was made on October 27, 2006, and the Plaintiff applied for the selection of a person subject to relocation measures regarding the instant project to the Defendant Corporation.

(2) On November 6, 2009, with respect to the instant housing in the instant project district, the registration of ownership preservation and the registration of ownership transfer in the name of the Plaintiff on the ground of the Non-Party’s birth, the Plaintiff’s birth, was made in sequence.

(3) Around December 2016, Defendant Corporation: (a) established and publicly announced the relocation measures for the instant project (hereinafter “instant public announcement”); and (b) determined that “Persons who continue to own and reside in the instant project district continuously from one year before the date of public announcement on the designation of the planned housing site for housing development ( October 27, 2006) to the date of public announcement on the designation of the planned housing site for relocation” (hereinafter “the instant public announcement”); (c) “Persons who moved to the instant project due to the implementation of the instant project (excluding an unauthorized building owner, corporation, or organization after January 25, 1989) after receiving compensation from the Defendant Corporation for the said housing.”

(4) On March 29, 2017, the Plaintiff filed an application for the selection of a person subject to supply of a housing site with the Defendant Corporation on March 29, 2017 pursuant to the instant public notice. The Plaintiff stated in the application that “self-employed has acquired ownership by constructing the instant housing in the 1970s, and thus constitutes a qualification for supply and demand of migrants housing sites.” The Plaintiff submitted the application accompanied by evidentiary documents, such as a building ledger, confirmation of neighboring residents, confirmation of users of electricity, waterworks opening, use of

(5) On July 28, 2017, the Defendant Corporation notified the Plaintiff of the decision to exclude the Plaintiff from the subject of the relocation measures on the ground of “acquisition of housing after the base date” (hereinafter “the first decision”), and the written notification states that “In the event that there is an objection to the non-conformity decision, the Defendant Corporation may file an objection with our Corporation in writing along with evidentiary materials that can satisfy the requirements for the selection of the subject under the instant public notice given within 30 days from the date of receiving the notice, and also inform the Plaintiff that it may have been able to file an administrative appeal or administrative litigation within 90 days.”

(6) On August 25, 2017, the Plaintiff filed an objection with the Defendant Corporation. In this case, the Plaintiff stated in the written objection that “self-reliance acquired ownership by newly building the instant house in the 1970s, but the building owner was registered in the building ledger due to a mistake in this Chapter,” and additionally submitted documentary evidence, such as a written confirmation of acceptance, a written confirmation of acceptance, a photograph of surveying obstacles at the time of 1972, a written confirmation of the Nonparty’s name, and a written confirmation of village residents.”

(7) On December 6, 2017, the Defendant Corporation notified the Plaintiff of the decision that the Plaintiff still excluded the Plaintiff from the subject of measures for relocation on the ground that “the previous owner cannot be acknowledged based on the fact-finding” (hereinafter “the second decision”). On the other hand, the notice of the second decision states that “In the event there is an objection again against the disposition for non-acceptance of the Plaintiff’s objection, the Defendant Corporation may file an administrative appeal or administrative litigation within 90 days from the date of receipt of the notice of the disposition in accordance with the Administrative Litigation Act.”

(8) On March 5, 2018, the Plaintiff filed an administrative appeal seeking revocation of the second decision with the Central Administrative Appeals Commission (hereinafter “Defendant Committee”). On October 17, 2018, the Defendant made a ruling dismissing the Plaintiff’s request for administrative appeal on the ground that the second decision does not constitute a disposition (hereinafter “instant ruling”) and the written ruling was served on the Plaintiff on October 31, 2018.

B. The key issue of the instant case is whether the second decision constitutes “disposition” subject to administrative appeal and revocation litigation, separate from the first decision.

2. The judgment of the court below

A. The lower court determined that: (a) the Plaintiff’s second decision cannot be deemed a disposition subject to administrative litigation separately from the first decision, on the grounds that (i) it is difficult to regard the Plaintiff’s objection as a new application separate from the initial application; (ii) at the time the Plaintiff filed an objection against the first decision; (iii) it was possible to file an administrative appeal or revocation lawsuit against the first decision; and (iv) it was the purport of maintaining the contents of the second decision as it is, which does not cause any new change in the Plaintiff’s rights and duties; and (iv) it cannot be deemed that the principle of trust protection in this case is applied. The second decision on the Defendant Corporation among the instant lawsuit, dismissed the part of the claim for revocation of the second decision; and that the part of the claim for revocation of the decision against

B. However, it is difficult to accept the judgment below as it is for the following reasons.

3. Judgment of the Supreme Court

A. The term “disposition”, which is the subject of an appeal litigation, refers to the exercise or refusal of public authority as an enforcement of law with respect to a specific fact by an administrative agency, and other similar administrative actions (Article 2(1)1 of the Administrative Litigation Act). Whether an act by an administrative agency may be subject to an appeal litigation can not be determined abstractly and generally. In specific cases, determination should be made on an individual basis by taking into account the content and purport of the relevant Acts and subordinate statutes, the subject, content, form, and procedure of the act, the substantial relation between the act and the disadvantage suffered by interested parties, such as the other party, and the principle of administration in the rule of law and administration, and the attitude of the administrative agency or interested parties related to the act (see Supreme Court en banc Decision 2008Du167, Nov. 18, 2010). Where it is unclear whether an act by an administrative agency constitutes “disposition”, the normative determination ought to be made by taking into account the other party’s awareness and predictability with respect to the method of appeal (see, e.g.

B. Examining the factual basis in light of the foregoing legal doctrine, it is reasonable to view the second decision as “disposition” subject to administrative litigation separately from the first decision. The specific reasons are as follows.

(1) A rejection disposition against an application seeking a beneficial administrative disposition is established by clearly expressing the intention of the competent administrative agency to reject the application of the parties. If a party files a new application after a rejection disposition, regardless of the title of the application, if the purport of the new application is to do so, then the competent administrative agency’s rejection of the application should be deemed a new rejection disposition (see Supreme Court Decision 2017Du52764, Apr. 3, 2019, etc.). Unless there are special provisions restricting the application period in the relevant statutes or the disposition standards publicly announced by the administrative agency in advance, the re-application does not have any legal grounds for rejecting the re-application, and even if there are special provisions restricting the application period, the issue of whether the re-application is intended shall be considered at the stage of determining the legitimate application period, and shall not be considered at the stage of examining

(2) Article 26 of the Administrative Procedures Act provides that when an administrative agency takes a disposition, it shall inform the party of whether an administrative appeal or administrative litigation can be filed with respect to the disposition, whether the appeal may be filed, whether the filing procedure and the filing period, and other necessary matters. In this case, when notifying the Plaintiff of the second decision, the Defendant Corporation notified the Plaintiff of the method of appeal that “if an objection is raised against the second decision, an administrative appeal or revocation lawsuit may be filed within 90 days from the date of the second decision,” it can be known that the Defendant Corporation itself was aware that the second decision constitutes a disposition to which the Administrative Procedures Act and the Administrative Litigation Act apply, and the Plaintiff as the other party is also aware that the second decision constitutes a disposition to which the Administrative Litigation Act apply. As such, it would be difficult to recognize that the second decision is the subject of administrative litigation. As the Defendant Corporation’s lawsuit was filed, it violates the principle of trust and good faith (Article 4 of the Administrative Procedures Act).

Supreme Court Decision 2010Du8676 Decided November 15, 2012, which the court below invoked by the court below, is related to a case where an administrative agency only made a decision of dismissal on "filing an objection" based on Article 18 of the former Civil Petitions Treatment Act (wholly amended by Act No. 13459, Aug. 11, 2015) and did not give an instruction on the method of filing an administrative lawsuit against the decision of dismissal (wholly amended by Presidential Decree No. 24235, Dec. 20, 2012). Thus, Article 29 (3) of the former Enforcement Decree of the Civil Petitions Treatment Act (wholly amended by Presidential Decree No. 24235, Dec. 20, 2012) applied to the relevant case provides that the head of the administrative agency shall specify the reason for the decision, the method of filing an objection against the original rejection disposition and the procedure for raising an objection against the original rejection disposition in the instant case).

C. Nevertheless, the lower court determined that the second decision did not constitute a disposition subject to administrative litigation separately from the first decision. In so determining, the lower court erred by misapprehending the legal doctrine as to a disposition subject to administrative litigation, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on

4. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim H-soo (Presiding Justice)