Hongpy Institute of Education (Attorney Jeon Jae-il et al., Counsel for the defendant-appellant)

Gwangju Metropolitan City superintendent of education (Attorney Jeong-soo, Counsel for defendant-appellant)

April 11, 2013

Gwangju District Court Decision 2012Guhap102 Decided January 17, 2013

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The defendant's request on September 7, 201 to recover KRW 13,311,000 against the plaintiff and each request for disciplinary action against the non-party 1 and the head of the same school administration office shall be revoked.

1. Details of the disposition;

A. On June 20, 197, the Plaintiff is a private school juristic person operating ○○ Female High School with the authorization of establishment on June 20, 1977.

B. From July 18, 2011 to August 10, 201, the Gwangju Metropolitan City Council pointed out the following: (a) conducted a specific audit and inspection of administrative affairs on ○○ Female High Schools; (b) conducted four negotiated contracts; (c) conducted two public checks (G2B); (d) improper selection of the two construction contractors; (d) violation of the prohibition of corporate property creation projects using the support budget of the Office of Education; (e) an excessive design for painting construction works (total amount of KRW 13,31,000); and (e) refused to sign a written confirmation of the head of the school and the head of the administrative office

C. On September 7, 2011, the Defendant issued a disposition demanding the Plaintiff to take measures to recover KRW 13,311,000 of the construction cost excessively designed and paid pursuant to Article 14 of the Administrative Audit Regulations of the Gwangju Metropolitan City Office of Education (hereinafter “instant regulations”) and to demand each disciplinary measure against Nonparty 1 and Nonparty 2 of the same school administration office (hereinafter “instant disposition”).

D. On September 8, 2011, the Plaintiff served the instant disposition in writing, and on October 6, 201, filed an objection with the Defendant pursuant to Article 16 of the instant provision, and the Defendant dismissed it on December 23, 2011.

E. On January 9, 2012, the Plaintiff filed the instant lawsuit.

[Ground of recognition] Facts without dispute, Gap evidence 1-1, 2, Gap evidence 2-1, 2, 3, Gap evidence 16, Eul evidence 4, the purport of the whole pleadings

2. Relevant statutes;

Attached Form is as shown in the attached Form.

3. Whether the lawsuit of this case is legitimate

A. Ex officio, the instant lawsuit was filed on January 9, 201, which was nine (90) days after September 8, 201, where the Plaintiff was aware of the instant disposition, as to the legitimacy of the instant lawsuit.

B. The plaintiff asserts that since the objection procedure against the disposition of this case constitutes a special administrative appeal, the period of filing the lawsuit of this case shall be calculated from the date of being notified of the result of the objection against the disposition of this case under the proviso of Article 20(1) of

Except as otherwise provided in other Acts, an administrative appeal under the Administrative Appeals Act may be filed against any disposition or omission by an administrative agency to relieve any rights or interests of the people infringed on by any unlawful or unreasonable disposition or omission of the administrative agency (Article 1), but special cases concerning any administrative appeal procedure in lieu of any administrative appeal under the Administrative Appeals Act or any administrative appeal procedure under the Administrative Appeals Act may not be prescribed by other Acts, except as otherwise expressly provided in other Acts (Article 3(1)).

Meanwhile, the Act on Public Audit is a law that prescribes fundamental matters concerning the composition, operation, etc. of a self-audit organization of central administrative agencies, local governments, and public institutions, and the head of an institution subject to self-audit notified of the audit results by the head of a central administrative agency, etc. which audited the audit results from the head of an agency subject to self-audit notified of the audit results from the head of an agency subject to self-audit, if deemed that the audit results are illegal or unjust, he/she may file an application for reexamination with the head of the central administrative agency, etc. who notified thereof within one month from the date of receipt of such notification, and the head of the central administrative agency, etc. who received the application for reexamination shall dismiss or dismiss, or revoke or change the audit results (Article 25 of the Act and Article 16 of the Enforcement Decree of the Act on Public Audit appears to be re-adjudication of the procedure for filing an application for reexamination). Article 15(2)4 of the Enforcement Decree of the Act on Public Audit stipulates that "where the case becomes final and conclusive through an administrative appeal

In full view of the above statutory provisions, an application for re-deliberation on the notification of audit results under the Act on Public Sector Audits is a procedure that requires the head of a central administrative agency, etc. who has conducted a self-audit to voluntarily re-examine whether the audit results or the requirements thereunder are lawful or inappropriate. The nature of the administrative appeal under the Administrative Appeals Act differs from that of the administrative appeal under the Administrative Appeals Act, and the special or special procedure for the administrative appeal under the Administrative Litigation Act cannot be called a special necessity to consider the expertise and peculiarity of the case, and thus, the special case for the filing period of the administrative appeal under the Administrative Litigation Act shall not be applied. Thus, a notification of the result of self-audit may be filed an administrative appeal or administrative litigation, regardless of the application for re-examination or objection, and the period for filing a lawsuit for cancellation of notification of the result of self-audit shall be counted from the date of notification, and it shall not be counted from the date of notification of the result of the application for re-audit (see Supreme Court Decision

Therefore, the plaintiff's assertion that the period of filing the lawsuit of this case should be calculated from the date of notification of the result of the objection procedure, on the premise that the procedure of filing the objection against the disposition of this case constitutes a special administrative appeal (the plaintiff uses Supreme Court Decision 2008Du19987 Decided January 28, 2010 as to the above argument, but the summary of the above Supreme Court's decision is a person who has an objection to the officially assessed individual land price may immediately institute an administrative litigation or institute an administrative litigation through an administrative appeal, and in this case, the period of filing the lawsuit of this case shall be calculated from the date of receipt of the certified copy of the written adjudication of the administrative appeal, and

C. The plaintiff pointed out that the defendant was able to file an administrative appeal or administrative litigation within 90 days in the disposition of this case. Thus, even if the defendant's failure to notify the defendant of the procedure for filing an administrative appeal violates Article 26 of the Administrative Procedures Act, Article 27 (6) of the Administrative Appeals Act provides that the administrative agency may file an administrative appeal within 180 days from the date of the disposition unless the notice of the period for filing an administrative appeal is given by the administrative agency pursuant to Article 27 (6) of the Administrative Appeals Act, i.e., the period under Article 27 (3) of the Administrative Appeals Act, but such provision does not apply to the filing of the administrative appeal, and it cannot be deemed that the provision that applies to the filing of the administrative appeal, and it cannot be said that the period for filing the appeal of this case is extended as an effect of the violation, or that the period for filing an administrative appeal of this case is calculated from the date of notification of the result

D. Ultimately, the instant lawsuit is unlawful as it was filed with the lapse of the filing period.

5. Conclusion

Therefore, the lawsuit of this case is unlawful, and thus, the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment Form 5]

Judge Sick-Woo (Presiding Judge)