[Defendant-Appellant-Appellee]

Daegu City Mayor (Attorney Shin-yang, Counsel for the defendant-appellant)

November 20, 1970

All of the lawsuits of this case shall be dismissed.

Litigation costs shall be borne by the plaintiff.

The defendant's disposition on the revocation of permission for a entertainment restaurant business on September 5, 1975 against the plaintiff and the disposition on the revocation of permission for the above cancellation on March 9, 1979 shall be revoked. The costs of lawsuit shall be borne by the defendant.

(1) In full view of the statements and arguments in Gap's 2, 5, 6, 7, 10, 12, 15, 16, and 17-1 and 2 without dispute over the establishment of a business permission, the plaintiff was operating a entertainment restaurant business under the trade name of the defendant (the head of the Daegu-gu public health clinic at the time) on May 14, 1974, with the permission for a entertainment restaurant business for the name of the housing, and the head of the Dong-gu tax office on July 25, 1975. The non-party 3 of the above disposition of cancellation against the plaintiff under Article 7 (2) of the National Tax Collection Act against the plaintiff on July 29, 1975, the defendant's withdrawal of the permission for the above business by the defendant on July 3, 1975, and the defendant could not request the plaintiff to revoke the permission for the above disposition of cancellation of the permission for a business on July 29, 1975.

(2) First, we examine the part of the claim seeking the revocation of the revocation of the business license, and the defendant's legal representative, since the plaintiff's lawsuit on this case was dismissed due to the violation of law, which was brought against the legitimate filing of a lawsuit without going through the legitimate filing of a lawsuit, I first

In other words, a lawsuit seeking the revocation of a disposition against an illegal act of an administrative agency or its affiliated agency (including a lawsuit seeking revocation within the meaning of declaring the invalidity of the disposition as a matter of course), which is, in order to file an appeal litigation, the plaintiff must first file a lawsuit to seek the revocation of the permission of the defendant's business operation. There is no evidence supporting that the plaintiff filed a lawsuit against the revocation of the permission of the defendant's business operation of the case (the evidence Nos. 3 and 44 do not exist any evidence supporting the authenticity, and it is apparent that the evidence Nos. 20 through 42 is not a petition against the disposition of the imposition of national taxes) and also according to Article 5 (2) (3) of the Administrative Litigation Act, an administrative litigation shall be filed within one year from the date of the disposition to the date of the revocation of the permission of the business operation of the case. It is evident that the date of the plaintiff's revocation of the permission of March 30, 1979.

Therefore, the part seeking the revocation of the business permission of the plaintiff in this case is without filing a lawsuit, and it is not possible to dismiss the plaintiff's business permission due to defects in the period of release.

(3) Next, we examine the part demanding revocation of the revocation of the business license.

ex officio, with respect to the revocation of the amusement restaurant business license by the Defendant against the Plaintiff on September 5, 1975, the Plaintiff’s revocation of the above business license is demanded to the Defendant on March 6, 1979, and the Defendant’s revocation of the above business license is demanded. On March 9, 1979, the Defendant’s rejection of the above business license to the Plaintiff is subject to administrative litigation.

After the cancellation of a false administrative act, the problem of whether the disposition of cancellation can recover the validity of the initial administrative act of the Si for the reason of its own illegality can be considered in two cases.

One is the case where the disposition of cancellation is absolutely invalidated due to its significant and apparent illegality, and in this case, it would be possible to withdraw it as a declaration of invalidation of the disposition of cancellation.In this case, the other is a simple illegal case not where the disposition of cancellation is absolutely invalidated, and in this case, when the law permits the institution of lawsuit or administrative litigation as to the disposition of cancellation, it would be resolved according to its procedure, and when there is no express provision as to the withdrawal of the disposition of cancellation (cancellation) in law, the disposition of cancellation should be established even if it is illegal, and therefore, the effect of the administrative act is finally invalidated, so it is not possible to bring a lawsuit against the administrative act which has already ceased to be effective by the cancellation of the disposition of cancellation, and it is reasonable to correct that the new administrative act of the same contents as the original administrative act cannot be performed.

In this case, as seen earlier, the Defendant’s revocation of the business license to the Plaintiff upon the request of the head of the competent tax office for the revocation of the business license pursuant to Article 7 of the National Tax Collection Act, and the revocation of the business license cannot be deemed a disposition of substantial and apparent invalidity. The Plaintiff’s revocation of the revocation itself by means of litigation or administrative litigation on the ground of illegality of the above revocation disposition cannot bring a lawsuit against the Defendant which already lost its validity. The Defendant also cannot bring a lawsuit against the Defendant by the revocation or withdrawal of the business license which already lost its validity. The Plaintiff’s request for the revocation of the business license against the Defendant is merely an infinite de facto truth without any legal binding power, and it is clear that the Plaintiff’s request for the revocation of the business license to the Defendant is merely an act of responding to the Plaintiff’s petition, and that it does not constitute the Plaintiff’s revocation of the business license by the Plaintiff’s legal representative, i.e., the Plaintiff’s revocation of the business license.

If so, the plaintiff's claim for the cancellation of the cancellation of the business permission in this case is not an administrative disposition but an action of fact that is not an appeal litigation and thus, it is improper to dismiss it.

(4) Therefore, the Plaintiff’s lawsuit of this case is dismissed as it is all unlawful, and the costs of lawsuit are assessed against the Plaintiff who lost. It is so decided as per Disposition.

December 4, 1970

Judges Park Jae-sik (Presiding Judge)