The case holding that it is not an administrative disposition subject to an administrative litigation

Even if the head of the Gu sent a public notice to the owner of the building in the urban redevelopment district requesting a voluntary removal of the building, it is clear that the title of the public notice is not an order of removal because it is an obstacle to the removal of the building, and the head of the Gu does not have any legal basis to demand the removal of the obstacles within the redevelopment district, and the contents of the public notice also requires the cooperation of the redevelopment project to the Gap, and the compulsory execution under the law is carried out due to the failure to voluntarily cooperate with the redevelopment project, and the head of the Gu received the above public notice after sending the public notice, and the head of the Gu requested the cancellation of the request, not the demand for the removal of the obstacles under Article 36 of the Urban Redevelopment Act or the demand for the voluntary removal under Article 35 (2) of the Administrative Vicarious Execution Act, if the head of the Gu responded not the demand for the removal of the building, but the demand for the voluntary removal of the building under the Administrative Vicarious Execution Act, in light of the substance of the reply and the reality of the administration and the general legal form.

Article 2 of the Administrative Litigation Act, Articles 36(1), 36(2), and 35(2) of the Urban Redevelopment Act

Supreme Court Order 82Nu161 Decided September 14, 1982 82Nu11 Decided March 4, 1983

Plaintiff

The head of Seodaemun-gu Seoul Metropolitan Government

Seoul High Court Decision 88Gu2757 delivered on June 23, 1988

The judgment of the court below is reversed.

The plaintiff's lawsuit is dismissed.

All costs of a lawsuit shall be borne by the plaintiff.

As to the grounds of appeal by Defendant Litigation Performers:

The official document of this case (Evidence A1) sent by the Defendant to the Plaintiff on March 2, 198 is called "redeveloped area" and its main contents are "the main time for voluntary removal of buildings until March 20, 198," and "the main time for removal, such as forced removal, etc. under Articles 36 and 35 (2) of the Urban Redevelopment Act, is to prevent any unexpected cases, such as forced removal, etc. under the conditions as prescribed by the Administrative Vicarious Execution Act, by failing to remove buildings until March 20, 208," the lower court determined that the title and content of the official document of this case are not only the external form of the order for removal of obstacles, but also the content that the Defendant seems to have forced removal with the legal authority, and it seems to be the object of administrative litigation, which is the order for removal under the Administrative Vicarious Execution Act.

On the premise of the above determination, the court below explained the meaning of the disposition of the administrative agency which is the object of the administrative litigation, and stated that the administrative agency's act is not determined by the internal intent of the administrative agency concerned but by the objective expression of the administrative act. In light of the fact that a certain act of the administrative agency has the same external form as an administrative disposition that gives objectively disadvantage to the people without any legal basis, and that if the other party to the act is aware of it as an administrative disposition, it is necessary to take measures to eliminate the disadvantage or apprehension of the people caused by the act, the act of the administrative agency which has the appearance of the administrative disposition such as the administrative disposition is subject to administrative litigation.

The issue of whether an administrative agency's act is deemed an administrative disposition can not be determined abstract, general, and in specific cases, the significance of administrative disposition should be determined individually depending on whether the administrative agency satisfies the requirements for the establishment and validity of the administrative disposition such as the above opinion of the court below. The disadvantage or apprehension caused by the act of the administrative agency should be determined by considering not only the principle of rule of law administration at that time, the level of people's awareness of rights, but also the attitude of the administrative agency related to the act. Accordingly, the defendant's public question about the removal of obstacles in this case sent to the plaintiff is examined.

First, it is clear that the title of the official title is an obstacle removal promotion tool, and it is not a removal order. Second, the defendant does not have any legal basis for requesting the plaintiff to remove obstacles within the redevelopment area of this case. With regard to this point, the defendant is not the principal agent of the redevelopment project of this case, and the court below is not entitled to demand the removal or removal of the obstacles within the redevelopment area of this case, and there is no authority to vicariously execute the redevelopment project from the redevelopment association which is a project undertaker, as it does not have any authority to request the removal or removal of administrative vicarious execution under Articles 36 (2) and 35 (2) of the Urban Redevelopment Act. Third, from the content of the act, the official title of this case is requested to the plaintiff for cooperation with the redevelopment project of this case, and it is difficult to view that the plaintiff's voluntary execution under the Administrative Vicarious Execution Act was conducted by the plaintiff's voluntary cooperation and enforcement under the law, and it is difficult to view that the other party's act was likely to suffer any uncertainty or uncertainty after the removal of the official title of this case.

In full view of the above circumstances, even though the official document of this case is an act of an administrative agency, it cannot take effect as an administrative disposition that directly affects the rights and obligations of the people because it has no legal basis, and its content does not seem to impose any obligation under public law on the other party, and there is no apprehension about the issue of whether it can be viewed as an administrative disposition. Thus, it cannot be viewed as a disposition subject to administrative litigation.

Therefore, the court below recognized the existence of administrative disposition against it, but it cannot be said that it was erroneous for the court below to reject the main safety defense and to accept the plaintiff's claim on the ground that it is null and void as a removal order issued by an unincorporated administrative agency.

Therefore, the judgment of the court below is reversed, and the plaintiff's lawsuit is dismissed on the ground that it is deemed sufficient for a party member to render a self-reader as seen earlier. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon Young-young (Presiding Justice)