A. A claim for revocation of a disposition of succession and a claim for illegality against an order of an administrative agency which is the preceding act (negative)

B. Whether the principle of ex officio transfer applies to the administrative litigation to revoke the disposition of revocation of the disposition of dismissal on vicarious execution (affirmative)

(a) If a petitioner or a lawsuit against an order to remove a building was filed without going through the procedure to seek the illegality of the order, the order to remove the building, which is the preceding act, shall be deemed to have become final and conclusive as legitimate, and in the disposition of a vicarious performance order, which is the subsequent act, the building shall not claim that it is a legitimate building that is not an unauthorized building,

B. Article 7 of the Administrative Vicarious Execution Act provides that a lawsuit may be filed in respect of vicarious execution under Article 7 of the Administrative Vicarious Execution Act, so the principle of ex officio discretion shall apply to the administrative litigation of revocation of disposition of vicarious execution

(a) Article 3 of the Administrative Vicarious Execution Act; Article 7 of the Administrative Vicarious Execution Act; Article 2 of the Administrative Litigation Act;

A. Supreme Court Decision 75Nu218 delivered on December 9, 1975, Supreme Court Decision 81Nu44 delivered on May 25, 1982

Attorney Lee Jae-chul, et al., Counsel for the defendant-appellant

Head of Seodaemun-gu, Attorney Park Jae-soo, Counsel for the defendant-appellant

Seoul High Court Decision 80Gu227 delivered on August 20, 1981

The judgment below is reversed and the case is remanded to Seoul High Court.

1. Judgment on the grounds of appeal

(A) According to the judgment of the court below and the records, since the defendant ordered the removal of the building to the plaintiff on March 15, 1980, it is evident that the plaintiff requested the revocation of the disposition for the removal of the building by proxy. The judgment of the court below is the claim of this case, since the building was constructed by the defendant's administrative order, and the plaintiff was ultimately constructed with the permission of the defendant, which is the permission-granting authority, the building cannot be deemed an illegal building, and it cannot be deemed that there is any infringement of public interest due to the existence of the building, and thus, the disposition of the dismissal by proxy is illegal.

(B) However, according to the evidence Nos. 7 and 7, the defendant ordered the maximum number of trees (the representative liquidator of the plaintiff at the time) as of November 9, 1979 to voluntarily remove the main building constructed without permission on the ground owned by Seoul, by December 5, 1979, and thus ordered the removal prior to the disposition of the vicarious removal.

Thus, if the above order for removal is against the plaintiff, and the plaintiff did not go through the procedure of demanding the removal of the building, the above order for removal of the building, which is the preceding act, has become final and conclusive as legitimate, so the above order for removal of the building cannot be asserted that the building of this case is a legitimate building, not a building without permission or to find such facts (see Supreme Court Decision 75Nu218 delivered on December 9, 1975). Nevertheless, the court below accepted the plaintiff's claim without examining the existence of the above order for removal of the building, the procedure of filing a lawsuit against the above order, and the procedure of filing a lawsuit against the order itself, and whether the order for removal of the building itself has any error in the law.

2. Ex officio determination

(A) According to Article 2 of the Administrative Litigation Act, in general, in order to file an appeal suit, it shall go through the source of lawsuit in accordance with the so-called principle of source of lawsuit. According to Article 7 of the Administrative Vicarious Execution Act, the principle of source of lawsuit shall apply to the administrative litigation of revocation of disposition of revocation of disposition of revocation of disposition of vicarious execution. Thus, the records do not show any trace of examination. According to the records, as the certificate of receipt of civil petition document No. 7 is accompanied by the certificate of receipt of the petition document No. 7 and the certificate of receipt by the director of the lawsuit is accompanied by the certificate of receipt of the petition document No. 7, it shall be revealed that this point is the source of lawsuit against this case, and the existence and existence of justifiable reasons for not not to go through the original ruling shall be examined.

(B) According to the records, the order of this case and the order of removal of the building above was issued to the maximum number of individuals, and according to the register of the plaintiff company attached to the records, the maximum number of such orders is the representative liquidator of the plaintiff company. Thus, regardless of whether each of the above dispositions against the maximum number of water should be viewed as effective as against the plaintiff company, there is no need to examine this point.

Therefore, the judgment of the court below is reversed and remanded, and it is so decided as per Disposition with the assent of all Justices involved.

Justices Jeon Soo-hee (Presiding Justice)