[1] Purport and requirements of "action for confirmation of illegality of omission" under Article 4 subparagraph 3 of the Administrative Litigation Act

[2] Whether a member of the National Assembly has the right to file a request for the process of appointment and dismissal, change of status, etc. in relation to the exercise of personnel rights against the President and the head of a special mission of the Ministry of Foreign Affairs and Trade (negative)

[1] A lawsuit seeking confirmation of illegality of omission under Article 4 subparagraph 3 of the Administrative Litigation Act is a system with the purpose of removing a passive state of omission or non-compliance by promptly responding to an administrative agency by ascertaining that the omission is illegal if the administrative agency fails to comply with a legal obligation to respond, such as affirmative action citing, rejecting, or rejecting an application based on a party’s legal or sound right within a reasonable period of time. Such a lawsuit can be instituted only by a person who has filed an application for a disposition and has a legal interest in seeking confirmation of illegality of omission. Thus, in cases where a party does not have a legal or sound right to request an administrative agency to issue an administrative disposition, or where there is no legal interest in seeking confirmation of illegality of omission, the lawsuit seeking confirmation of illegality of omission cannot be deemed to have been illegal omission, or where there is no legal interest in seeking confirmation of illegality of omission, the lawsuit for confirmation of illegality of omission cannot be deemed to have been unlawful, since the party

[2] Under the Foreign Service Act stipulating the retirement age of foreign service officers, there is no provision that a general citizen or member of the National Assembly, etc. may file an application for appointment or dismissal of the head of a special mission against the person who has the authority to appoint and dismiss foreign service officers. Furthermore, a member of the National Assembly may control unlawful and unreasonable acts of the administration through various exercise of authority such as the authority granted by the Constitution, such as the right to inspection and investigation of state administration, the right to request the attendance of a member of the National Assembly, the right to ask questions, and the right to request dismissal of a member of the State Council, etc. In addition, under the National Assembly Act, the Unification Foreign and Trade Committee of the National Assembly provides that the member of the National Assembly shall perform duties such as examination of bills and petitions belonging to the Ministry of Foreign Affairs and Trade, such as matters concerning personnel affairs of a foreign service officer. However, it cannot be said that a member of the National Assembly grants a specific right to request the head of a special mission to each member of the National Assembly, regardless of the fact that a member of the National Assembly can have a political responsibility.

[1] Articles 2, 4 subparag. 3, and 36 of the Administrative Litigation Act / [2] Articles 2(1)2, 22, 61, 62, and 63 of the Foreign Service Officers Act; Articles 36 and 37 subparag. 5 of the National Assembly Act; Articles 2 and 4 subparag. 3, and 36 of the Administrative Litigation Act

[1] Supreme Court Decision 91Nu11278 delivered on June 9, 1992 (Gong1992, 2156), Supreme Court Decision 91Nu8807 delivered on September 14, 1992 (Gong1992, 2907), Supreme Court Decision 92Nu1709 delivered on April 23, 1993 (Gong1993Ha, 1577), Supreme Court Decision 95Nu7345 delivered on September 15, 1995 (Gong195Ha, 3436), Supreme Court Decision 96Nu12641 delivered on January 23, 198 (Gong198, 620), Supreme Court Decision 9Nu17508 delivered on December 7, 1999 (Gong198, 198).

[Judgment of the court below]

Minister of Foreign Affairs and Trade

Seoul High Court Decision 99Nu8529 delivered on October 27, 1999

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

Article 4 subparag. 3 of the Administrative Litigation Act provides that the court below's action for confirmation of illegality of omission by the plaintiff that the defendant shall not continue to hold the office of the non-party stationed in the United States of America is unlawful. The court below held that the defendant's action for confirmation of illegality of omission by the defendant cannot be seen as an unlawful action against the plaintiff, because it does not constitute an unlawful action against the public official belonging to the Ministry of Foreign Affairs and Trade under the law or regulations of the State Council because the defendant's action for confirmation of illegality of omission by the defendant cannot be seen as an unlawful action against the plaintiff, such as the plaintiff's refusal or rejection of the application within a reasonable period of time, despite the legal response obligation of an administrative agency to respond to the request based on the party's statutory or cooking rights. Thus, the court below's decision that the plaintiff's action for confirmation of illegality of omission cannot be seen as an unlawful action against the public official belonging to the Ministry of Foreign Affairs and Trade under the Civil Affairs and Trade Act, since the plaintiff's request for such an action cannot be seen as an unlawful action against the plaintiff's general officer's authority.

Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon Jae-sik (Presiding Justice)