2020Guhap5541 Redemption from the National Treasury

A

1. The Minister of Strategy and Finance;

2. Commissioner General of the National Police Agency;

3. Korea;

Pleadings without Oral Proceedings

August 20, 2020

1. The plaintiff's lawsuit against the defendants is dismissed in entirety.

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

1. The Defendants’ unlawful profits and national treasury embezzlements since the founding country of the Republic of Korea shall be recovered from the State, and automatically recovered in the future.

2. The Defendants shall be removed.

3. The Defendants jointly pay KRW 100,000,000 to the Plaintiff.

1. Whether the lawsuit of this case is legitimate

ex officio deemed.

A. As to the part of a claim for removal (Article 2) of the Administrative Litigation Act, only a lawsuit seeking confirmation of illegality of omission is recognized, and an administrative litigation seeking the performance or confirmation of the duty of commission cannot be permitted (see Supreme Court Decision 2001Da15828, 15835, 15842, Feb. 13, 2004).

The Plaintiff is seeking to dismiss the Defendants from office, which is not allowed under the Administrative Litigation Act, because it constitutes a lawsuit seeking performance of the duty to act. Of the instant lawsuit, the part of the claim against the said Defendants is unlawful.

B. The part concerning recovery of unjust enrichment, etc. against the defendant, the Commissioner of the National Police Agency, and the part concerning the claim for monetary payment (Article 1 and 3 of the purport of the claim) can only be the defendant (Article 13 and Article 38 of the Administrative Litigation Act), and only the State, public organization, and the subject of other rights are the defendant (Article 39 of the Administrative Litigation Act) in a lawsuit concerning legal relations under public law, such as restitution of unjust enrichment, embezzlement, etc. against the defendant, the Commissioner of the National Police Agency and the Commissioner of the National Police Agency and the head of the National Police Agency, or the part concerning the plaintiff's claim for monetary payment cannot be filed against the administrative agency because it is not an appeal litigation as to the performance of the duty of payment, and it is likely to harm the state, public organization, and the subject of rights. Even if any, the part concerning the recovery of unjust enrichment, etc. against the defendant, the administrative agency of this case, and the head of the National Police Agency and the subject of other rights, which are unlawful.

C. The remainder of the claim against Defendant Republic of Korea

1) In a lawsuit seeking restitution of unjust enrichment, etc. (see, e.g., Paragraph (1) of the claim), a person who asserts that he/she is a person entitled to claim reimbursement has standing to sue (see, e.g., Supreme Court Decision 94Da14797, Jun. 14, 1994). Therefore, a person who files a lawsuit seeking performance is in principle asserting that he/she is a person entitled

Of the instant lawsuits, the purport is to recover unjust enrichment, etc. claimed by the Plaintiff against Defendant Republic of Korea from the National Treasury, which is presumed to be “resumed.” As such, this part does not constitute cases where the Plaintiff asserts that he/she is a person holding the right to demand performance, and it is unlawful as it does

2) The consolidation of related claims under Articles 38 and 10 of the Administrative Litigation Act (Paragraph 3 of the purport of the claim) requires that the original appeal litigation be lawful. Thus, in a case where an appeal litigation is dismissed in an unlawful manner, the relevant joined claims shall also be dismissed as inappropriate (see, e.g., Supreme Court Decision 2000Du697, Nov. 27, 2001).

The Plaintiff’s assertion that the State agencies, including the Defendant, the Commissioner General of the National Police Agency, engage in an act without authority and repeats unjust enrichment and embezzlement from the National Treasury, appears to be seeking compensation for damages arising therefrom (Article 2(2)). As long as the claim against the Defendants in the instant lawsuit is unlawful, this part of the relevant claimant’s claim is unlawful.

2. Conclusion

It is so decided as per Disposition by the assent of all participating Justices, since all of the lawsuits of this case are unlawful.

The presiding judge, presiding judge, chief judge

Judges Park Jung-sik

Judges Park Jong-won