(a) The purport of the lawsuit system to confirm illegality of the omission;

(b) The requirement for an action to affirm illegality of the omission;

A. A lawsuit for confirmation of illegality of omission under Article 4 subparag. 3 of the Administrative Litigation Act is a system with the purpose of removing a passive illegal state, which is called omission or non-compliance, by promptly responding to an administrative agency’s response, in a case where the administrative agency does not perform its legal duty to respond to a request based on the party’s laws and regulations within a reasonable period of time, such as affirmative disposition accepting, dismissing, or rejecting the request within a reasonable period of time.

B. A lawsuit seeking confirmation of illegality of an omission may be instituted only by a person who has filed a request for a disposition and has legal interest in seeking confirmation of illegality of an omission, and the response by an administrative agency seeking such a request must be related to a disposition as stipulated under Article 2(1)1 of the Administrative Litigation Act. Thus, in a case where a party fails to file a request for an administrative act against an administrative agency or makes a disposition of refusal against a party’s request, it cannot be deemed that there is no standing to sue or an illegal omission subject to an appeal litigation, and thus, the lawsuit seeking confirmation of illegality of an omission is unlawful.

(a) Article 4 subparagraph 3 of the Administrative Litigation Act; Article 36 of the Administrative Litigation Act

[Plaintiff-Appellant] Plaintiff 1 and 1578 (Gong1992, 2156) and 91Nu8807 (Gong1992, 2908) and 92Nu17099 (Gong1577) decided April 23, 1993 (Gong1993Ha, 1577)

Plaintiff 2, et al., Counsel for the defendant-appellant-appellee

The head of the Mining Registration Office

Seoul High Court Decision 94Gu8985 delivered on April 14, 1995

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

A lawsuit for confirmation of illegality of omission under Article 4 subparagraph 3 of the Administrative Litigation Act is a system for the purpose of removing a passive illegal state called omission or non-compliance with an administrative agency's response promptly by confirming the illegality of the omission in a case where an administrative agency does not have a legal response obligation to respond, such as affirmative action accepting, 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 brought only by a person who has filed an application for a disposition and has a legal interest in seeking confirmation of illegality of omission. Accordingly, a response by an administrative agency's response to an administrative agency's response should be pertaining to a disposition under Article 2 (1) 1 of the Administrative Litigation Act. Thus, even if a party fails to file an application with an administrative agency for an administrative action, even if the party does not have a legal or sound right to demand that the administrative agency perform such administrative action, or where the administrative agency has rendered a disposition of refusal against a party's request, the lawsuit cannot be deemed unlawful as being subject to a plaintiff's standing to sue or an appeal.

According to the reasoning of the judgment below, the court below acknowledged facts as stated in its decision, and found that under Article 39 (1) and (3) of the Mining Industry Act and Article 92 (2) 21 of the Enforcement Decree of the same Act, the defendant's response against the plaintiff's petition for cancellation of mining right should be deemed a disposition to revoke the plaintiff's mining right, and under Article 39 (2) 21 of the same Act, the defendant should revoke the mining right, and the State should pay compensation to the mining right holder when the mining right is revoked under Article 39 (1) of the same Act, but it is not a provision that grants the mining right holder the right to request cancellation of the mining right on the ground that the above provision harms the public interest, and there is no ground to believe that the plaintiff has the right to request cancellation of his/her mining right against the plaintiff pursuant to Article 39 (1) of the same Act or the reasoning of the court below's decision that the plaintiff's reply against the plaintiff's petition for cancellation of mining right should be deemed an action against the plaintiff, or there is no unlawful omission.

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

Justices Park Jong-ho (Presiding Justice)