Whether a notice of the result of prior examination under Article 19(1) of the former Civil Petitions Treatment Act constitutes an administrative disposition subject to appeal litigation (negative)

Article 19(1) and (3) of the former Civil Petitions Treatment Act (amended by Act No. 11492, Oct. 22, 2012; hereinafter “former Civil Petitions Treatment Act”); Article 31(3) of the former Enforcement Decree of the Civil Petitions Treatment Act (amended by Presidential Decree No. 24235, Dec. 20, 2012); the prior review request system aims to ensure the predictability of civil petition administration by allowing civil petitioners to receive the public opinion of the administrative agency in advance with regard to civil petitions involving large-scale economic costs, and it is difficult to deem that the administrative agency has granted the right to request the expression of a specific opinion desired by the civil petitioners. Even if the result of the prior review is possible, it does not necessarily mean that the administrative agency must accept the disposition, but it is not possible to notify the civil petitioners of the possibility of being subject to prior review, and even if it does not directly notify the result of the prior review, it does not constitute an appeal litigation under the former Civil Petitions Treatment Act.

Article 19(1) and (3) of the former Civil Petitions Treatment Act (Amended by Act No. 11492, Oct. 22, 2012); Article 31(3) of the former Enforcement Decree of the Civil Petitions Treatment Act (Amended by Presidential Decree No. 24235, Dec. 20, 2012); Article 2(1)1 of the Administrative Litigation Act

Plaintiff 1 and one other (Attorney Lee Young-young et al., Counsel for the plaintiff-appellant)

Head of Seocheon-si District Office (Attorney So Young-cheon, Counsel for the plaintiff-appellant)

Seoul High Court Decision 2012Nu28959 decided April 5, 2013

The judgment of the court below is reversed and the plaintiffs' appeal is dismissed. The total costs of the lawsuit after the appeal are assessed against the plaintiffs.

The grounds of appeal are examined.

1. The issue of whether a certain act of an administrative agency can be a subject of an appeal cannot be determined abstractly and generally. In a specific case, an administrative disposition is an enforcement of law with respect to a specific fact conducted by an administrative agency as a public authority, which directly affects the rights and obligations of the people, in mind of the content and purport of the relevant Act and subordinate statutes, the subject, content, form, and procedure of the act, substantial relation between the act and disadvantage suffered by interested parties, such as the other party, and the principle of administration by the rule of law and the attitude of the administrative agency and interested parties related to the pertinent act, etc. (see, e.g., Supreme Court Decisions 91Nu1714, Jan. 17, 1992; 2008Du167, Nov. 18, 2010).

2. The former Civil Petitions Treatment Act (amended by Act No. 11492, Oct. 22, 2012; hereinafter “Civil Petitions Treatment Act”) provides that, in cases of civil petitions involving large-scale economic costs, a civil petitioner may request a preliminary review with a summary document before submitting civil petition documents to the head of the administrative agency (Article 19(1)); and the head of the administrative agency shall notify the civil petitioner of the result of the preliminary review; and the head of the administrative agency shall not process civil petitions notified that it is possible by means of rejection, etc. for any reason other than publicly notified at the time of notification of the result of the preliminary review (Article 19(3)), except in cases where the civil petitioner’s cause or force majeure or other special reason is impossible (amended by Presidential Decree No. 24235, Dec. 20, 2012). The head of the administrative agency shall minimize the required documents for the civil petition subject to preliminary review (Article 31(3)).

The contents and structure of the above provisions of the Civil Petitions Treatment Act are as follows: ① The purpose of the prior review request system is to ensure the predictability of civil petition administration by allowing civil petitioners to receive the public opinion of the administrative agency in advance through a simple procedure with regard to civil petitions that require large-scale economic costs; ② it is difficult to deem that the administrative agency has granted the right to demand the presentation of a specific opinion desired by the civil petitioners; ② even if the notice is given as a result of the prior review, it is subject to the restriction pursuant to Article 19(3) of the Civil Petitions Treatment Act, but it does not necessarily require the disposition citing the civil petition; ③ even if the notice is given as a result of the prior review, it is impossible for the administrative agency to process the civil petition, even if it is notified of the impossibility of the prior review result, it cannot be deemed that the notice directly affects the civil petitioners’ rights and duties, and it does not constitute an administrative disposition that is subject to appeal litigation.

3. Nevertheless, on the grounds indicated in its reasoning, the lower court determined that the notice of the result of the preliminary examination constitutes an administrative disposition, and reversed the judgment of the first instance court which rejected the instant lawsuit by deeming it illegal, and rendered a judgment to remand the instant case to the first instance court

Such a measure by the court below is erroneous in the misapprehension of legal principles as to an administrative disposition subject to appeal litigation, which affected the conclusion of the judgment.

4. Therefore, the judgment of the court below is reversed, and this case is sufficient to be directly tried by the Supreme Court, and therefore, it is decided to dismiss all of the plaintiffs' lawsuits. In conclusion, the judgment of the court of first instance is just, and the plaintiffs' appeal is without merit, and all of the appeals are dismissed, and the total costs of the lawsuit after the appeal are to be borne by the losing party. It is so decided as per Disposition by the assent

Justices Kim So-young (Presiding Justice)