[1] In a case where an objection is filed pursuant to Article 18(1) of the Civil Petitions Treatment Act as a result of the administrative agency’s rejection disposition against a civil petition, whether the period for filing a lawsuit for cancellation is calculated from the date when the result of the objection is notified (negative), and whether the procedure for filing a lawsuit for cancellation infringes on the right to a trial as stipulated in Article 27

[2] Whether a decision to reject the “request for objection against a rejection disposition” under Article 18(1) of the Civil Petitions Treatment Act is subject to appeal litigation (negative)

[1] In full view of the provisions and purport of Articles 18 through 20 of the Administrative Litigation Act, Articles 3(1) and 4(1) of the Administrative Appeals Act, Article 18 of the Civil Petitions Treatment Act, and Article 29 of the Enforcement Decree of the Civil Petitions Treatment Act (hereinafter “Civil Petitions Treatment Act”), the civil petition may file an administrative appeal or administrative litigation, regardless of the civil petition objection, against the rejection disposition that is the object of the civil petition objection under the Civil Petitions Treatment Act. Further, the civil petition objection procedure is different from that of the administrative appeal under the Civil Petitions Treatment Act, which is one of the basic matters recognized with the civil petition treatment act, and it cannot be deemed that the special or special procedure for the administrative appeal under the Administrative Appeals Act is not the case’s special or special procedure for examining the expertise and specificity of the case, and thus, the period of filing the lawsuit cannot be counted from the date when the result of filing the civil petition is notified. As such, the procedure of the civil petition and its objection can not be seen as being infringed upon by the rights and interests of the citizens or the civil litigation procedure.

[2] Unlike the administrative appeal procedure under which an administrative agency’s objection against the rejection disposition under Article 18(1) of the Civil Petitions Treatment Act (hereinafter “Civil Petitions Treatment Act”) is permitted to remedy the rights or interests of the people infringed upon by illegal or unjust disposition or omission of the administrative agency, the procedure is that the administrative agency, which refuses to handle civil petitions, re-examines the civil petition matters under the Civil Petitions Treatment Act, and makes it possible for the administrative agency to voluntarily correct the case. Accordingly, where the administrative agency, which refuses to do so, re-examines the civil petition matters under the Civil Petitions Treatment Act, has to take a new disposition without cancelling the rejection disposition subject to the filing of the civil petition, but if the objection is rejected, it merely notifies the result without making a new rejection disposition. Accordingly, the rejection decision or notification to the effect that the objection is rejected, which is premised on maintaining the previous rejection disposition, and thus does not affect the previous administrative appeal or administrative litigation. Thus, it is reasonable to deem that there is no new change in the rights and obligations of the petitioner or an independent administrative action corresponding thereto.

[1] Articles 18 and 20 of the Administrative Litigation Act, Articles 3(1) and 4(1) of the Administrative Appeals Act, Article 18 of the Civil Petitions Treatment Act, Article 29 of the Enforcement Decree of the Civil Petitions Treatment Act / [2] Article 18 of the Civil Petitions Treatment Act, Article 29 of the Enforcement Decree of the Civil Petitions Treatment Act, Article 2(1)1, and Article 19 of the Administrative Litigation Act

Young Children Co., Ltd. (formerly: COS Industry Development Co., Ltd.) (Law Firm Digital Ballast Co., Ltd., Counsel for the plaintiff-appellant)

Gwangju Market (Law Firm Rodd, Attorneys Yellow-nam et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2009Nu27123 decided April 1, 2010

The part of the judgment of the court below concerning the decision to dismiss an objection filed on November 25, 2008 is reversed, and the judgment of the court of first instance concerning this part is revoked, and this part of the lawsuit is dismissed. The remaining appeals are dismissed. All costs of the lawsuit are borne by the plaintiff.

The grounds of appeal are examined.

1. As to the rejection disposition of this case

(a) A lawsuit seeking revocation of a disposition, etc. shall be instituted within 90 days after the person becomes aware of such disposition, and if other Acts prescribe that such disposition, etc. requires an adjudication on an administrative appeal, it may be brought without going through an administrative appeal, but if it has gone through an administrative appeal, the period for filing the lawsuit shall be reckoned from the date on which the original copy of the written adjudication on such disposition is served (Articles 18

Except as otherwise provided for in other Acts, the Administrative Appeals Act is an Act to relieve the rights or interests of the people infringed upon by any unlawful or unreasonable disposition or omission by an administrative agency (Article 1), and with respect to any disposition or omission by an administrative agency, an administrative appeal under the Administrative Appeals Act may be filed pursuant to the Administrative Appeals Act (Article 3(1)), but no special case concerning any special administrative appeal procedure in lieu of any administrative appeal under the Administrative Appeals Act or any administrative appeal procedure under the Administrative Appeals Act shall be provided for in other Acts, unless it is especially necessary to take into account the expertise and specificity of any case (Article 4(1)).

Meanwhile, the Civil Petitions Treatment Act (hereinafter “Civil Petitions Treatment Act”) provides for the basic matters concerning civil petition treatment with the aim of protecting the rights and interests of the people by promoting the fair treatment of civil petition affairs and the rational improvement of the civil petition administrative system (Article 1). A civil petitioner who is dissatisfied with the disposition of refusal taken by the head of the administrative agency against civil petition affairs may file an objection in writing with the head of the administrative agency which is the disposition agency (hereinafter “civil petition objection”). The head of the administrative agency shall decide the civil petition objection within 10 days from the date the civil petition objection is filed and notify the civil petitioner of the result in writing without delay (Article 18(1) and (2). However, the civil petitioner may file an administrative appeal under the Administrative Appeals Act or an administrative litigation under the Administrative Litigation Act regardless of whether the civil petition is filed (Article 18(3) of the same Act). Accordingly, the head of the administrative agency shall specify the grounds for the decision and the original method of objection and the procedure for objection against the disposition of refusal (Article 29(3) of the Enforcement Decree of the same Act).

In full view of these legal provisions and their purport, an administrative appeal or administrative litigation may be filed against the rejection disposition that is the object of the civil petition filing under the Civil Petitions Treatment Act, regardless of the civil petition filing, and the civil petition filing is one of the basic matters recognized with respect to the civil petition treatment, which differs from the administrative appeal under the Administrative Appeals Act, and is different from the nature of the administrative appeal under the Administrative Appeals Act, and cannot be called a special or special procedure for the administrative appeal under the Administrative Litigation Act, and thus, it cannot be said that the special case for the period of filing a lawsuit is applicable to the administrative appeal under the Administrative Litigation Act, since it cannot be said that the special case for the administrative appeal under the Administrative Litigation Act has been

In addition, as long as it is guaranteed that an administrative appeal or administrative litigation can be filed against the rejection disposition that became the subject of the civil petition separate procedures, it shall not be deemed that the protection of the rights and interests of the people is neglected by the civil petition filing procedure, or that the right to file a trial under Article 27 of the Constitution is infringed.

B. The court below accepted the judgment of the court of first instance and notified the court of first instance on July 31, 2008 that the defendant's rejection disposition of this case which rejected the plaintiff's application for approval of housing construction project plan as of July 31, 2008, "if an objection is raised, an objection against the rejection disposition may be filed with the head of the administrative agency pursuant to the Civil Petitions Treatment Act within 90 days from the date of receiving the rejection disposition, and regardless of whether or not the objection is raised, or inform the administrative court having jurisdiction over the defendant pursuant to the Administrative Appeals Act that he can file an administrative appeal with the disposition or the ruling authority pursuant to the Administrative Litigation Act, or file an administrative litigation pursuant to the Administrative Litigation Act." On October 27, 2008, the court below determined that the plaintiff's objection of this case cannot be seen as an administrative appeal against the rejection disposition of this case as a civil petition under Article 18 (3) of the Civil Petitions Treatment Act, and that the objection of this case does not affect the filing period of the revocation disposition of this case.

C. Examining the reasoning of the first instance judgment as cited by the lower court and the reasoning of the lower judgment in light of the records, the lower court’s determination seems to be based on the aforementioned legal doctrine. In so doing, contrary to what is alleged in the grounds of appeal, it did not err by misapprehending the legal principles on the purport of the objection notification system under the Administrative Procedures Act, the legislative purpose of the Civil Petitions Treatment Act, interpretation and application of Article 43 of the Administrative Appeals Act, interpretation of the request for administrative appeal, guarantee of constitutional right to trial, existence of a ruling by the ruling authority, thereby adversely affecting the conclusion of the judgment. Therefore, the allegation in the grounds of appeal on this premise

2. On the decision to dismiss the objection of this case

A. We examine ex officio whether the decision to dismiss the objection of this case is subject to appeal litigation.

The subject of litigation for revocation as prescribed by the Administrative Litigation Act shall be the exercise or refusal of public power as an enforcement of law with respect to a specific fact by an administrative agency, and a ruling on other corresponding administrative actions and administrative appeals: Provided, That the litigation for revocation of a ruling shall be limited to the cases where the ruling itself has an unlawful error (Articles 2(1)1, 19, and 2

However, unlike the administrative appeal procedure, which is the procedure that allows a separate administrative agency to appeal against the civil petition under the Civil Petitions Treatment Act for the purpose of remedying the rights or interests of the people infringed upon by an administrative agency's illegal or wrongful disposition or omission, the civil petition is a procedure that allows a disposition agency which refuses to handle civil petition under the Civil Petitions Treatment Act to review the civil petition application again and correct the case. Accordingly, if the civil petition is filed, a new disposition should be taken without revoking the rejection disposition subject to the civil petition, and if the civil petition is rejected, a new disposition should be taken without receiving the first application. However, if the objection is rejected, a new disposition should be made without making a rejection disposition again. Accordingly, the rejection decision or notice to that effect is merely based on the premise that the previous rejection disposition is maintained and it does not affect the administrative appeal or administrative litigation against the rejection disposition. Accordingly, it is reasonable to deem that the civil petition is not an exercise of public authority that causes a new change in the rights and duties of the civil petition or an administrative action corresponding thereto, and thus, it cannot be viewed as an independent appeal litigation procedure. As seen earlier, the purport and notice of the objection method and the original rejection method.

B. In light of the above legal principles and the records, the defendant notified on November 25, 2008 that he cannot accept the plaintiff's objection of this case against the rejection disposition of this case. This is an expression of intent to maintain the rejection disposition of this case, which is the previous disposition, and it does not cause a new change in the plaintiff's rights and duties, so it cannot be viewed as an independent appeal.

C. Therefore, even though it is obvious that the lawsuit seeking the revocation of the above decision on the objection of this case is unlawful and its defect cannot be corrected, the court below did not have to determine the grounds of appeal disputing the propriety of the decision. Thus, the court below did not err by misapprehending the legal principles on appeal litigation, thereby affecting the conclusion of the judgment.

3. As to the ground of appeal

The grounds of appeal shall be stated in the petition of appeal or in an independent written statement of the grounds of appeal, and shall not invoke any other written statement (see Supreme Court Decision 91Da22278, Oct. 11, 1991, etc.). The grounds of appeal shall specify the grounds of appeal and explain specific and explicit reasons as to which part of the judgment below is in violation of the statutes (see Supreme Court Decision 2007Da5287, Feb. 28, 2008, etc.).

In the appellate brief of this case, the statement that “the illegality of the judgment of the court of first instance pointed out in the appellate brief and the appellate brief shall be invoked as the grounds for appeal” is merely invoked the content of another written statement, and it does not state specific and explicit grounds as to what portion of the judgment below is in violation of the law, and therefore, it cannot be deemed as legitimate grounds for appeal.

4. Conclusion

Therefore, the part of the judgment of the court below regarding the decision to dismiss the objection of this case is reversed, and this part of the case is sufficient to be directly tried by the Supreme Court. Accordingly, the decision of the court of first instance as to this part is revoked, and this part of the lawsuit is dismissed, and the remainder of the appeal is dismissed, and the total cost of the lawsuit is borne by the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)