[1] The nature of a lawsuit claiming the payment of coal price stabilization subsidy under the former Coal Industry Act (=party litigation under public law)

[2] In a case where a civil suit is filed by misunderstanding an administrative case as a civil case, the measures to be taken by the court of the lawsuit

[1] The coal price stabilization support fund has the nature of the support fund paid at a national policy level for the stabilization and development of coal mining that is gradually difficult to manage due to the decline in demand for coal and poor business environment. Since the coal mining business operator's right to claim such support fund against the coal industry rationalization business operator is a right under public law, which is naturally granted as a policy pursuant to the Coal Business Act and subordinate statutes, a lawsuit against the coal industry rationalization business operator seeking a subsidy against the coal industry rationalization business operator in accordance with the coal industry law and the Guidelines for Payment of Coal Price Stabilization Support Fund constitutes a party lawsuit under public law, which is a legal relationship under public law.

[2] Article 7 of the Administrative Litigation Act provides that the transfer of an administrative litigation to a competent court shall be made by applying Article 31(1) of the Civil Procedure Act in a case where the administrative litigation has been filed without the plaintiff's intention or gross negligence, and it is desirable in terms of the party's remedy or litigation economy to transfer it to the competent court rather than to dismiss the lawsuit of violation under its jurisdiction on account of its illegality. Thus, in a case where the plaintiff misleads the competent court as a civil litigation without any intention or gross negligence, if the plaintiff has jurisdiction over the administrative litigation at the same time, it shall be deliberated and determined by the administrative litigation if the lawsuit has jurisdiction over the administrative litigation, and if the lawsuit does not have jurisdiction over the administrative litigation, it shall be made by examining and determining it as an administrative litigation. If it is obvious that the litigation has already been filed as an administrative litigation and the period for filing the lawsuit has already been over, or there is no disposition subject to the administrative litigation has already been no jurisdiction over the administrative litigation, it shall be dismissed and transferred to the competent court as it is unlawful,

[1] Articles 29 and 31 of the former Coal Industry Act (amended by Act No. 4754 of March 24, 1994); Articles 30 and 38 of the former Enforcement Decree of the Coal Industry Act (amended by Presidential Decree No. 14437 of December 23, 1994) / [2] Article 7 of the Administrative Litigation Act; Article 31(1) of the Civil Procedure Act

[1] Supreme Court Decision 93Nu13209 delivered on October 12, 1993 (Gong1993Ha, 3105) / [2] Supreme Court en banc Decision 94Da31235 delivered on February 15, 1996 (Gong196Sang, 768)

Kim Il-soo

Coal Industry Rationalization Project Association

Seoul District Court Decision 95Na7849 delivered on May 25, 1995

The judgment of the court of first instance is reversed and the judgment is revoked.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Article 31(1), (2), 29(3)7, and (5) of the former Coal Industry Act (amended by Act No. 4754, Mar. 24, 1994); Article 30(1), (2), and (4) of the Enforcement Decree of the Coal Industry Act (amended by Presidential Decree No. 14437, Dec. 23, 1994); Article 38 subparag. 11 of the former Coal Industry Act (amended by Act No. 1994, Mar. 199; hereinafter referred to as “the former Coal Industry Stabilization Fund”) provides for an annual subsidy for coal mining business operator for the purpose of stabilizing the supply of coal and coal products; Article 31(1), (2), (3) of the former Coal Industry Act (amended by Act No. 4754, Mar. 24, 1994; hereinafter referred to as “the former Coal Industry Stabilization Fund”) which is established for the purpose of stabilizing the price of coal and processed coal products; the Defendant’s provision for the operation and management of the Fund.

The court below held that the lawsuit for the claim for the payment of the subsidy of this case filed against the defendant after the plaintiff, who is a coal mining agent, filed an application for the payment of the subsidy under the above payment guidelines with the defendant, was rejected, constitutes a party suit under public law. Although the judgment below did not contain any somewhat inappropriate points in its reasoning, it is just in accordance with the above legal principles, and there is no error of law as otherwise alleged in the ground of appeal. The ground of appeal is without merit.

2. Regarding ground of appeal No. 2

Article 7 of the Administrative Litigation Act provides that the transfer of an administrative litigation to a competent court shall be made by applying Article 31(1) of the Civil Procedure Act to a court where the administrative litigation is filed without the plaintiff's intention or gross negligence. It is desirable in terms of the remedy of rights or the economy of litigation to transfer the case to a competent court rather than to dismiss the lawsuit of violation of jurisdiction on account of its illegality. Thus, in a case where the plaintiff files a civil lawsuit without any intention or gross negligence, which is to be filed as an administrative litigation, and if the plaintiff has jurisdiction over the administrative litigation at the same time, it shall be deliberated and determined by the administrative litigation (see Supreme Court Decision 94Da31235, Feb. 15, 1996). If the lawsuit does not have jurisdiction over the administrative litigation, the procedure and period of filing a lawsuit already over the administrative litigation, or even if there is no disposition, etc. subject to administrative litigation, it is improper to dismiss it, not if it becomes illegal but if it becomes an administrative litigation.

Nevertheless, the court below revoked the judgment of the court of first instance and dismissed the lawsuit of this case on the ground that the plaintiff filed a lawsuit for claiming the payment of the subsidy of this case, which constitutes a party lawsuit under public law, as it is unlawful. Therefore, the court below erred by misapprehending the legal principles on the transfer under Article 7 of the Administrative Litigation Act. The ground of appeal pointing this out has merit.

3. Therefore, the judgment of the court of first instance is reversed and the judgment of the court of first instance is revoked, and the case is transferred to the Seoul High Court which is the legal ground of jurisdiction.

Justices Park Jong-ho (Presiding Justice)