[1] Whether a retroactive effect on a decision of unconstitutionality is imposed on an administrative disposition which has already occurred after the period of revocation lawsuit is expired (negative), and whether the relevant law, which serves as the basis for an administrative disposition before the Constitutional Court's decision of unconstitutionality, is a ground for unconstitutional invalidation (negative)

[2] The case holding that, where a subjective claim and a conjunctive claim are combined, correction of the defendant of the conjunctive claim is not permitted because it constitutes the subjective and preliminary consolidation of the lawsuit, and thus, the court is not allowed to recommend correction of the defendant, and it also goes beyond the limit of the right to request clarification

[1] Since the effect of the decision of unconstitutionality is limited to a general case brought before the court on the ground that the law in question was the premise for judgment after the decision of unconstitutionality, if the Constitutional Court, after the issuance of an administrative disposition based on the pertinent law, decided that the law in question was unconstitutional, then the administrative disposition would be identical to that in which the law in question was conducted without any legal basis. However, in the case of an administrative disposition which became final and conclusive after the period for filing a suit for cancellation, it shall not be deemed that the retroactive effect of the decision of unconstitutionality is not reached. Generally, the circumstance that the law in question is in violation of the Constitution cannot be deemed objectively obvious before the decision of unconstitutionality of the Constitutional Court is made. Thus, the reason that the pertinent law in question is in violation of the Constitution before the decision of unconstitutionality of the Constitutional Court

[2] The case holding that the submission of the preliminary claim for confirmation of invalidity of the disposition imposing the excess of the housing site and the preliminary claim for confirmation that the excess of the housing site is not subject to compulsory collection due to the disposition for arrears (public sale) is separate and independent, and the so-called subjective and preliminary consolidation of the lawsuit is not allowed in principle as a matter of principle, the court is not able to actively recommend the defendant to be corrected as the state or public organization, and the submission of the preliminary claim is also recommended to be changed in exchange for the main claim, instead of the main claim.

[1] Article 47 of the Constitutional Court Act, Articles 1 [general administrative disposition], 19, and 20 of the Administrative Litigation Act / [2] Article 27 of the former Act on the Ownership of Housing Site (repealed by Act No. 5571 of September 19, 198), Articles 8(2), 14, 21, and 27 of the Administrative Litigation Act (general administrative litigation judgment], Article 126 of the former Civil Procedure Act (amended by Act No. 6626 of January 26, 202), Article 126 of the former Civil Procedure Act (amended by Act No. 6626 of January 26, 200), Article 230 (see current Article 253)

[1] Supreme Court Decision 92Nu9463 delivered on October 28, 1994 (Gong1994Ha, 3139), Supreme Court Decision 93Da41860 delivered on October 28, 1994 (Gong1994Ha, 3109) / [2] Supreme Court Decision 80Da2840 delivered on March 23, 1982 (Gong1982, 462), Supreme Court Decision 83Nu54, 555 delivered on June 26, 1984 (Gong1984, 1307), Supreme Court Decision 95Nu509 delivered on March 22, 196 (Gong196, 1409) / [2] Supreme Court Decision 83Nu2840 delivered on August 26, 1997 (Gong196, 1409).

○○○○ (Attorney Kang In-bok, Counsel for the defendant-appellant)

The head of Jongno-gu et al. (Seo Law Firm, Attorneys Park Sang-chul, Counsel for the plaintiff-appellant)

Seoul High Court Decision 2000Nu16212 delivered on March 16, 200

All appeals are dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. As to the misapprehension of legal principles as to the retroactive effect of a decision of unconstitutionality

Since the court below's decision of unconstitutionality is a general case brought before the court on the ground that the law in question was the premise of judgment after the decision of unconstitutionality, if the Constitutional Court, after the decision of unconstitutionality after the issuance of administrative disposition based on the pertinent law, decided the law that became the basis of the administrative disposition, the administrative disposition would be identical to that of the law in question. However, in the case of an administrative disposition which became final and conclusive after the expiration of the period for filing a suit for cancellation, it shall not be deemed that the retroactive effect of the decision of unconstitutionality is not reached. Generally, the circumstance that the law is in violation of the Constitution cannot be objectively obvious before the Constitutional Court's decision of unconstitutionality is made. Thus, the reason that the law in question, which became the basis of the administrative disposition before the decision of unconstitutionality of the Constitutional Court, can only be the premise of the lawsuit seeking cancellation of the administrative disposition, and it does not constitute the ground for unconstitutional invalidation. There is no error in the misapprehension of legal principles as to the retroactive effect of the decision of unconstitutionality as the ground for appeal.

2. As to the misapprehension of legal principles as to the prohibition of property right deprivation by retroactive legislation and the principle of proportionality or the principle of excessive prohibition

Although the Constitutional Court rendered a decision of unconstitutionality as to the whole of the Act on Ownership of Housing Site (amended by Act No. 5571 of September 19, 1998) on April 29, 1999, the part that the court below determined that Articles 1 through 3 of the Addenda of the above Act does not violate the Constitution is erroneous as it goes against the binding force of the Constitutional Court's decision of unconstitutionality as provided by Articles 47 (1) and 75 (6) of the Constitutional Court Act. However, the conclusion that the above decision of this case is not null and void as seen above is justifiable, and therefore, the judgment of the court below did not err in the misapprehension of legal principles as to the prohibition of deprivation of property rights by retroactive legislation, the proportionality principle required for restricting property rights, equal rights, etc. guaranteed by the Constitution, or the principle of excessive prohibition, which affected the conclusion of the judgment.

3. As to the incomplete hearing due to the non-exercise of the right to ask for a seat

The main claim for confirmation of invalidity of each of the dispositions of this case and the conjunctive claim for confirmation that the excess ownership charges under each of the dispositions of this case cannot be collected compulsorily by the disposition of this case are separate claims, and the subjective and preliminary consolidation of the so-called lawsuit is not allowed in principle (see Supreme Court Decision 95Nu5509 delivered on March 22, 1996). Thus, the court below is unable to recommend the plaintiff to actively correct the defendant of the conjunctive claim as the state or public organization, and it also recommended the plaintiff to submit the conjunctive claim by suggesting that it should be changed in exchange for the main claim instead of the main claim. Thus, it goes beyond the limit of the right to request a statement. Thus, the court below did not exercise such right to request a statement, and there is no error of law in the misapprehension of legal principles as to the scope of the ex officio examination in the administrative litigation or in the exercise of the right to request a statement.

4. Conclusion

Therefore, all appeals are 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 on the bench.

Justices Lee Jin-hun (Presiding Justice)