[1] The institutional purport of a lawsuit seeking confirmation of illegality of an omission, and whether there is a benefit to seek confirmation of illegality of the omission in a case where it becomes impossible to protect and remedy the rights and interests which have been ultimately infringed or interfered with, even though the party is found to be illegal due to a change in circumstances that occurred after the party's request (negative)

[2] The case holding that where a local government did not provide for the specific scope of a public official engaged in de facto labor activities permitted to engage in a labor movement through a municipal ordinance, a person engaged in the control of violation of traffic restriction of bus exclusive lanes filed a lawsuit for confirmation of illegality of omission, but the retirement was during the period of final appeal, the interest in the lawsuit seeking confirmation of illegality of omission, which was not enacted

[1] A lawsuit seeking confirmation of illegality of omission is aimed at removing a passive illegal state, which means a prompt response of an administrative agency, through the prompt response of an administrative agency, in a case where an administrative agency does not have a legal obligation to respond to a request based on a party’s legal or sound right within a reasonable period of time, such as accepting such request, dismissing, or rejecting such request, even though the administrative agency has a legal obligation to respond to a request based on the party’s legal or sound right, and further compelling the administrative agency to take any disposition, whether actively or passive, or not, through the binding force of the quoted judgment, and ultimately protecting the party’s rights and interests by disputing the disposition. Thus, even if the party’s request is confirmed to be illegal due to a change in circumstances that occurred after the party’s request, if it is impossible to protect or remedy the rights and interests which are ultimately infringed or interfered, there is no benefit to seek confirmation of illegality of the omission.

[2] The case holding that where a local government did not provide for the specific scope of a public official engaged in actual labor activities permitted to engage in a labor movement through a municipal ordinance, a person engaged in the control of violation of traffic restriction of bus exclusive lanes filed a lawsuit for confirmation of illegality of omission, but the retirement was during the period of final appeal, the interest in the lawsuit seeking confirmation that omission, which did not enact the above municipal ordinance,

[1] Articles 2, 4 subparag. 3, 30, 36, and 38(2) of the Administrative Litigation Act / [2] Articles 2, 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, 157), 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 9Nu170508 delivered on December 7, 1997, 2095 (Gong25068, Oct. 26, 205)

Plaintiff (Law Firm Han General Law Office, Attorney Lee Jae-in, Counsel for plaintiff-appellant)

Seoul Special Metropolitan City Mayor (Attorney Go Young-deok, Counsel for the defendant-appellant)

Seoul High Court Decision 99Nu15084 delivered on May 30, 2000

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

The judgment on the grounds of appeal shall be made ex officio.

A lawsuit for confirmation of illegality of omission is aimed at removing a passive illegal state, which is called omission or non-compliance with an administrative agency's response promptly by ascertaining illegality of omission, in a case where an administrative agency does not have a legal response obligation to respond to an application based on a party's legal or sound right within a reasonable period of time, such as accepting the application, dismissing, or rejecting it. Furthermore, in a case where an administrative agency is dissatisfied with a party's legal response obligation, it is intended to compel the administrative agency to take a certain disposition through the binding force of the judgment citing the application, and ultimately to protect the party's rights and interests by disputing the disposition. Thus, even if the above omission is confirmed to be illegal due to a change in circumstances that occurred after the party's request, if it becomes impossible to protect and remedy the rights and interests that have been ultimately infringed or interfered, there is no benefit to seek confirmation that the omission is unlawful.

According to the records, although the plaintiff, who was engaged in the traffic administration of Seocho-gu and the local guidance personnel belonging to the Seocho-gu Office, for the control of the violation of the bus exclusive lanes, provides that the scope of the public officials engaged in the actual labor activity permitted to engage in labor movement shall be prescribed by the Municipal Ordinance under Article 58 (2) of the Local Public Officials Act, it is sought confirmation on the ground that the defendant's failure to stipulate the specific scope of "public officials engaged in the actual labor activity" through the Municipal Ordinance constitutes illegal omission. The plaintiff already retired from office on June 30, 2000 when the lawsuit of this case was pending in the Supreme Court. Thus, even if the defendant's failure to enact the above Municipal Ordinance is illegal omission, it is impossible for the plaintiff to receive relief ultimately due to the confirmation, and therefore, the lawsuit of this case is unlawful since the benefit of lawsuit seeking confirmation that the omission without the enactment of the above Municipal Ordinance was unlawful. Therefore, the conclusion that the court below rejected the lawsuit of this case is justified.

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 Son Ji-yol (Presiding Justice)