[1] The meaning of "a rejection disposition" and "an omission" that are the subject of an administrative litigation seeking revocation of a rejection disposition under the Administrative Litigation Act

[2] Whether notification of the result of a disposition under Article 258(1) of the Criminal Procedure Act or notification of the reason for not instituting a public prosecution under Article 259 of the Criminal Procedure Act can be viewed as a separate independent disposition (negative)

[1] The term "disposition of refusal", which is the object of a disposition of refusal under the Administrative Litigation Act, refers to an act of refusal of an administrative agency's exercise of public authority or other equivalent administrative action as an enforcement of law with respect to a specific fact by an administrative agency, that is, an action of refusal of an application for seeking the issuance of an affirmative disposition, and "an omission" which is the object of a lawsuit seeking confirmation of illegality of omission, refers to an administrative agency's failure to take a certain disposition within a reasonable period of time despite the legal obligation to take a certain disposition with respect to the application by the party concerned (Article 2 (1) 1 and 2). The term "disposition" refers to a disposition that is the object of an administrative litigation under the Administrative Litigation Act, and even if the concept of a disposition is defined under Article 2 of the Administrative Litigation Act, a disposition that is planned to be dissatisfied with other procedures than an administrative litigation shall not be subject to appeal litigation under the Administrative Litigation Act. A public prosecutor's non-prosecution decision of non-prosecution can only be appealed by an appeal under the Public Prosecutor's Office Act

[2] The notification of the result of a disposition under Article 258(1) of the Criminal Procedure Act serves as the starting point for the appeal period against the non-prosecution decision, and Article 259 of the Criminal Procedure Act provides that the complainant, etc. may help the complainant, etc. decide whether to appeal against the non-prosecution decision. As such, such notification or notification is related to the prosecutor's disposition, which is a non-prosecution decision, and does not constitute a separate independent disposition. If the prosecutor fails to perform his/her duty to notify the result of a disposition under Article 258(1) of the Criminal Procedure Act, the non-prosecution decision becomes effective. If the prosecutor fails to perform his/her duty to notify the result of a disposition under Article 259(1) of the Criminal Procedure Act, the failure to file an appeal may cause interference with the prosecutor's non-prosecution decision, and thus, it may be difficult for the complainant, etc. to proceed with the appeal period from the time when the ground "in the absence of any responsibility to file an appeal within the fixed period" under Article 10(6) of the Prosecutor's Office Act.

[1] Article 2 (1) of the Administrative Litigation Act, Article 10 of the Public Prosecutor's Office Act, Article 260 of the Criminal Procedure Act / [2] Articles 258 (1), 259, 260 (1) and (2) of the Criminal Procedure Act, Article 10 (4) and (6) of the Public Prosecutor's Office Act

[1] Supreme Court Decision 89Nu2271 delivered on October 10, 1989 (Gong1989, 1687) Supreme Court Decision 99Du11264 delivered on March 28, 200 (Gong200Sang, 1084)

Plaintiff

Gwangju District Prosecutors' Office

Gwangju High Court Decision 2016Nu4132 decided May 25, 2017

The judgment of the court below is reversed. The plaintiff's appeal is dismissed. The total costs after the appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. "Refusal disposition", which is the object of a lawsuit seeking revocation of rejection disposition under the Administrative Litigation Act, refers to an administrative agency's failure to conduct an action against an application seeking the issuance of a public authority or an equivalent administrative action as to a specific fact, i.e., an administrative agency's failure to conduct an action against an application for the issuance of a affirmative disposition. "Omission" which is the object of a lawsuit seeking confirmation of illegality of omission means an administrative agency's failure to conduct a certain disposition within a reasonable period of time (Article 2 (1) 1 and 2). The term "disposition" refers to a disposition that is the object of an administrative litigation under the Administrative Litigation Act. Even if the concept of disposition defined under Article 2 of the Administrative Litigation Act is defined, a disposition that is planned to object to an appeal by other procedures than an administrative litigation is not the subject of an administrative litigation (Supreme Court Decision 9Du1264 delivered on March 28, 200). Thus, a public prosecutor's non-prosecution decision under the Public Prosecutor's Office Act and a reappeal under the Criminal Procedure Act cannot be lodged 198.

According to the Criminal Procedure Act, where a public prosecutor makes a disposition, such as a decision not to institute a public prosecution or institute a public prosecution with respect to a case of accusation or accusation, he/she shall notify the complainant or accuser in writing within seven days from the date of such disposition (Article 258(1)); where a decision not to institute a public prosecution with respect to a case of accusation or accusation has been made and the complainant or accuser’s request is made, he/she shall, within seven days from the date of such disposition, explain in writing the reason therefor to the complainant or accuser (Article 259). In addition, where the complainant or accuser’s request is notified by the public prosecutor, he/she may request in writing the High Court having the jurisdiction over the location of the district public prosecutor’s office to which the public prosecutor belongs to which the public prosecutor belongs to make a ruling not to institute a public prosecution (main sentence of Article 260(1)); however, in principle, in order to apply for a ruling, Article 10(4) of the Public Prosecutor’s Office Act provides that an appellant or accuser’s complaint shall be dismissed within three days from the date of appeal is notified.

As such, notification of the result of a disposition under Article 258(1) of the Criminal Procedure Act is the starting point of the appeal period against the non-prosecution decision, and Article 259 of the Criminal Procedure Act provides that the complainant, etc. may help the complainant, etc. decide whether to file an appeal or not. As such, such notification or notification is related to the prosecutor's disposition, which is a non-prosecution decision, and does not constitute a separate independent disposition. If the prosecutor fails to perform his/her duty to notify the result of a disposition under Article 258(1) of the Criminal Procedure Act, the non-prosecution decision becomes effective, and if the prosecutor fails to perform his/her duty to notify the result of a disposition under Article 259(1) of the Criminal Procedure Act, it may cause interference with the prosecutor's non-prosecution decision, and thus, it may be difficult for the complainant, etc. to proceed with the appeal period from the time when the reason has not been resolved within the fixed period pursuant to Article 10(6) of the Prosecutor's Office Act.

2. The reasoning of the lower judgment and the evidence duly admitted reveal the following.

A. On April 6, 2015, the Plaintiff filed a complaint against the Plaintiff to the effect that: (a) Nonparty 1 and Nonparty 2 of the public trial at the public trial trial at the public trial of the case of violation of the Public Official Election Act (Act No. 2014Gahap541, Apr. 6, 2015 against the Plaintiff referred to the facts of suspicion, including the Plaintiff’s objection, during the case investigation; (b) Nonparty 3 of the public prosecutor, who was investigating the facts of the offense, including the Plaintiff’s objection, committed the crime of leakage of official duties; and (c) Nonparty 3 of the public prosecutor, who was investigating the facts of the offense, committed the crime of leakage of official secrets by reporting to the two prosecutors of the above public trial; and (d) around that time, all of the public prosecutors filed a complaint.

B. On September 17, 2015, the investigation officer of the Gwangju District Public Prosecutor’s Office and investigation officer mentioned the facts of the crime committed by the public prosecutor during a criminal trial on September 17, 2015, constitutes a justifiable act that is excluded from illegality as an act under the prosecutor’s law, and accordingly, deemed that the crime of defamation, the crime of publication of suspected facts, and the crime of leakage of official secrets is not constituted, and the case was sent to the prosecutor.

C. On September 22, 2015, the Defendant decided not to prosecute (Dismissal of Complaints) three of the above Prosecutor, and prepared a written decision regarding “defeasible facts” and “reason for Non-prosecution” by citing a written opinion written by an investigation officer in his/her preparation. On the same day, the Defendant sent a written notice of disposition of the instant case to the Plaintiff and received it by the Plaintiff around that time. As a result of the disposition of the instant case, “the name of the crime” included only “defasible damage.”

D. On November 27, 2015, the Plaintiff sent to the Defendant a content-certified mail stating that “In relation to the Plaintiff’s accusation case, the Plaintiff was notified of a non-prosecution disposition only on the part of the crime of defamation, but the Plaintiff shall be notified of the result of the disposition regarding the name of the omitted crime within seven days, and shall file an application for objection.” (hereinafter “instant application”), as supporting materials, the Plaintiff’s written statement to the Plaintiff prepared by the Defendant, ② the notice on the disposition of the Defendant’s accusation case, ③ the written statement of the investigation officer’s preparation, and ③ the written statement of the investigation officer’s written statement.

E. On December 24, 2015, the Defendant did not take any measure against the instant application, the Plaintiff filed the instant lawsuit seeking confirmation of illegality of omission and revocation of the refusal disposition as a preliminary measure, asserting that the Defendant’s measure against the instant application constituted omission or rejection disposition under the Administrative Litigation Act.

3. Examining these factual relations in light of the legal principles as seen earlier, the instant application is a content requiring the performance of the obligation to notify the result of the disposition under Article 258(1) of the Criminal Procedure Act, and the notification of the result of the disposition cannot be deemed as a factual act and a separate independent disposition. Thus, the Defendant’s omission or refusal in the instant application does not constitute a “disposition” subject to a lawsuit seeking confirmation of illegality of omission under the Administrative Litigation Act or a “disposition of refusal” subject to a lawsuit seeking revocation of refusal.

Furthermore, even if examining the reasoning of the non-prosecution decision, it is evident that the Plaintiff intended to terminate the whole of the Plaintiff’s accusation case. As long as the Defendant rendered a non-prosecution decision on September 22, 2015 regarding the entire Plaintiff’s accusation case and notified the Plaintiff of the result of disposition of the accusation case, it cannot be deemed that the Defendant merely stated only the representative crime of defamation, which is the name of the crime, did not perform the duty of notification of the result of disposition under Article 258(

Therefore, the primary claim in the instant lawsuit is not the subject of a lawsuit seeking confirmation of illegality of omission under the Administrative Litigation Act, and thus is unlawful. The preliminary claim is also unlawful since it seeks the revocation of a measure that does not fall under the “disposition, etc.” under the Administrative Litigation Act.

Nevertheless, the lower court determined otherwise and accepted the Plaintiff’s primary claim on the ground that the omission, other than defamation, of the Plaintiff’s accusation case, by deeming that the Defendant’s notification of the result of the disposition, constitutes the subject of determination on the merits. In so doing, the lower court erred by misapprehending the legal doctrine on the legality of a disposition and an action seeking confirmation of illegality of omission under the Administrative Procedures Act, thereby adversely affecting the conclusion of the judgment

4. Therefore, the judgment of the court below shall be reversed, and this case is sufficient for the court to render a direct judgment. The conclusion of the judgment of the court of first instance that dismissed all of the lawsuits of this case is justifiable, and the plaintiff's appeal is dismissed, and the total cost of the lawsuit after the appeal is assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices

Justices Cho Jae-chul (Presiding Justice)