Benefits of legal action seeking confirmation of invalidity of already implemented administrative vicarious execution

With respect to an act ordered to the person under obligation under Article 2 of the Administrative Vicarious Execution Act, the appeal under Article 3 of the same Act and the notification procedure under a warrant for vicarious execution is required, and in the case of an act for which vicarious execution has already been completed as a factual act, the appeal for nullification of the disposition is to be made on the ground that the damages or the restitution for the unlawful reason is not the benefit of confirmation.

Articles 2 and 3 of the Administrative Vicarious Execution Act

65Nu25 delivered on May 31, 1965 (Supreme Court Decision 2457 delivered on November 23, 1967, Decision 67Nu115 delivered on October 23, 1967 (Supreme Court Decision 366 delivered on October 36, 196, Decision 15Nu14 delivered on October 14, 196, Decision 3Da59 delivered on September 5, 199)

A clan, et al. except for the following:

Msan Market

The case shall be dismissed.

Litigation costs shall be borne by the plaintiff.

It is confirmed that the defendant's order to open a grave to the plaintiff et al. within 14th, Dong-dong, Masan-dong, No. 3-1, Masan-dong, 1974 against the plaintiff et al., and that a disposition to open a grave to the plaintiff et al. is null and void for the above grave as of December 5, 1974.

Litigation costs shall be borne by the defendant.

Preliminaryly, the Defendant’s disposition of mooring the said grave as of December 5, 1974 against the Plaintiff, etc. is revoked.

On April 20, 1974, the Defendant issued an order to open 15 graves owned by the Plaintiff on the ground that the 15th of the graves owned by the Plaintiff was in violation of Article 16(1) of the Burial and Graveyard, etc. Act, and the fact that the Defendant issued an order to open the grave as stated in the purport of the claim on December 5 of the same year is no dispute between the parties.

The plaintiff's land is the plaintiff's own forest land for more than 10 years, and the main grave of the plaintiff's 10 billion won has been established. Article 16 (1) of the Burial and Graveyard Act provides that the Mayor of Seoul Special Metropolitan City, the Mayor of Busan Metropolitan City, or the Do governor may order the reburial of a grave which was buried in the land other than a cemetery or buried in another's land without the consent. Article 7 of the Enforcement Rule of the same Act provides that the period of public announcement is limited, and Article 3 of the Addenda of the same Act provides that the graveyard installed before this Act enters into force shall be deemed to have been established under this Act. Thus, this case's administrative disposition is invalid as a matter of course, and even if it does not violate the above Act, it shall not be deemed that the new grave should be voluntarily removed within 6 days from the date of delivery of the above land, and that the new grave construction order should be revoked as part of the comprehensive plan for the relocation of the plaintiff's grave 197.

Therefore, with respect to an act ordered to an obligor under Article 2 of the Administrative Vicarious Execution Act, after the procedure of notification by a warrant of vicarious execution and the extension of the claim for damages, or restitution for the reason of illegality such as the theory of lawsuit is completed, separate from the claim for nullification of the disposition, and there is no benefit of confirmation immediately, and the claim for cancellation of the disposition does not have a benefit of protection of rights. Thus, the plaintiff's lawsuit on this case must be dismissed as it is improper for the decision, and the costs of the lawsuit shall be borne by the losing party.

Judges Park Jae-sik (Presiding Judge)