(영문) 서울행정법원 2020.8.14.선고 2020구합57806 판결

1. Defendant 1) is liable for the payment of compensation to the persons of distinguished services to the national independence even on March 10, 2020. However, Defendant 1 confirms the omission that was not sent even to the Korean national independence.

2. All persons involved in the foregoing omission shall be subject to automation until they die, are removed from office, and are committed.

3. The Defendants jointly pay to the Plaintiff KRW 100,000,000.

Reasons

1. Whether the lawsuit of this case is legitimate

A. Determination on the part of the claim for confirmation of illegality of omission (Article 1)

1) In a lawsuit for confirmation of illegality of omission under Article 4 subparagraph 3 of the Administrative Litigation Act, where a party does not have any legal or sound right to require an administrative agency to perform any administrative act, the lawsuit for confirmation of illegality of omission cannot be deemed to be unlawful on the ground that there is no standing to sue, or an illegal omission subject to an appeal litigation, and thus, it cannot be deemed that there is an illegal omission (see, e.g., Supreme Court Decisions 9Nu17568, Dec. 7, 199; 99Du11455, Feb. 25, 2000).

2) Even if examining the Plaintiff’s assertion, it is difficult to find legal grounds for the Plaintiff to demand the payment of compensation to the Defendants, or to demand the dispatch of the culture discount card, and there is no ground to deem that such content is reasonable. Therefore, the instant lawsuit is unlawful because there is no standing to sue, or there is no illegal omission that is the object of an appeal litigation.

3) Furthermore, in light of the provisions of Article 2(1)2 and Article 4 subparag. 3 of the Administrative Litigation Act, a lawsuit seeking confirmation of illegality of omission refers to an administrative agency’s omission, and at this time, an administrative agency has the authority to decide on the administrative intent of the State or a public organization and to express it to the outside. However, the defendant’s Ministry of Patriots and Veterans Affairs is merely an administrative agency established under the Prime Minister’s jurisdiction (Article 22-2 of the Organization Act), and the defendant’s Ministry of Culture, Sports and Tourism is only an administrative agency under the direct control of the President (Article 35 of the Government Organization Act). The defendant’s Republic is merely a legal entity of the State, and the defendant’s Republic is merely a natural person

B. Determination on the part of the claim for death, removal, and automation of the participants (Paragraph 2 of the claim)

1) Under the Administrative Litigation Act, with respect to an omission by an administrative agency, only a lawsuit seeking confirmation of illegality of omission is recognized, and an administrative litigation seeking the performance or confirmation of the duty of commission is not permissible (see Supreme Court Decision 2001Da15828, 15835, 15842, Feb. 13, 2004).

2) The Plaintiff seeks to kill all the persons involved in the omission under Paragraph (1) of the claim against the Defendants, remove participants, and dispose of them by automation until they were committed an act. This is not permissible under the Administrative Litigation Act, a lawsuit seeking the performance of an administrative agency’s obligations. Determination on the part of the claim for monetary payment (Paragraph (3) of the claim) is not permitted.

1) The consolidation of related claims under Articles 38 and 10 of the Administrative Litigation Act requires that the original appeal shall be lawful, and in a case where the original appeal litigation is dismissed on the grounds that it is unlawful, the relevant claims joined therein shall also be dismissed as satisfying the requirements for the lawsuit (see Supreme Court Decision 2000Du697, Nov. 27, 2001).

2) In the instant case, it does not specify what the cause of the Plaintiff’s claim for monetary payment is. However, at least, the purport of seeking monetary payment (Article 3) along with each claim for confirmation of illegality of omission (Article 1) and investigation, removal, and automation (Article 2) is to be construed as a joint claim for damages arising from the Plaintiff’s omission, etc., as alleged by the Plaintiff. However, as seen earlier, the part of the claim for confirmation of illegality of omission and the part of the claim for removal, removal, and automation in the instant lawsuit are dismissed in entirety, and thus, the combined part of the claim for monetary payment should be dismissed as inappropriate.

2. Conclusion

Therefore, since the lawsuit of this case is unlawful and its defects cannot be corrected, it is so decided as per Disposition by the assent of all participating Justices, in accordance with Article 219 of the Civil Procedure Act applied mutatis mutandis by Article 8(2) of the Administrative Litigation Act.