[1] In a case where an administrative appeal was filed after the lapse of 90 days from the date when the existence of an administrative disposition became known, but a dismissal ruling was rendered on the ground that it is unlawful, and thereafter a revocation suit was filed against the original disposition within 90 days from the date when the written adjudication was served on the grounds that it is unlawful, whether the period

[2] In a case where the National Health Insurance Corporation imposed penalty surcharges on Gap on September 2, 2009 pursuant to Article 85-2 (1) of the National Health Insurance Act, and received them on September 7, 2009, Gap filed an administrative appeal with the Prime Minister under the Prime Minister for Administrative Appeals after the lapse of 90 days from that time, and received a dismissal ruling on the ground of the expiration of the period for request, and thereafter filed a revocation suit against the original disposition within 90 days from the time when the written ruling was served, the case affirming the judgment of the court below which dismissed the above revocation suit on the ground that it is unlawful

[1] In full view of Articles 18(1) and 20(1) of the Administrative Litigation Act and Article 18(1) of the former Administrative Appeals Act (wholly amended by Act No. 9968, Jan. 25, 2010), when a person immediately selects the method of filing a revocation suit against a disposition with the knowledge of the administrative disposition, he/she shall file a revocation suit within 90 days from the date when he/she becomes aware of the disposition, and when he/she selects the method of filing a revocation suit against the original disposition, he/she shall file a revocation suit within 90 days from the date when he/she becomes aware of the disposition and is served with the written adjudication on the administrative appeal. Therefore, where a revocation suit is not filed without filing an administrative appeal within 90 days from the date when he/she becomes aware of the disposition, the subsequent revocation suit is illegal after the lapse of the period of filing a lawsuit, and it is not deemed that the period of filing a revocation suit has re-compliance with the original disposition within 90 days from the date he/she was served with a written adjudication on the administrative appeal.

[2] In a case where the National Health Insurance Corporation imposed a penalty surcharge on Gap on September 2, 2009 under Article 85-2 (1) of the National Health Insurance Act, and received the penalty surcharge on September 7, 2009, Gap filed an administrative appeal with the Prime Minister for the administrative appeals after the lapse of 90 days from that time, and received a ruling of rejection on the ground of the expiration of the period for request, and thereafter filed a lawsuit seeking revocation of the original disposition within 90 days from the time when the written ruling was served, the case affirming the judgment of the court below which dismissed the lawsuit for revocation of the disposition imposing a penalty surcharge on Gap on the ground that the lawsuit for revocation of the disposition imposing the penalty surcharge was filed after the expiration of the period for filing the lawsuit on the ground that it was unlawful.

[1] Articles 18(1) and 20(1) of the Administrative Litigation Act, Article 18(1) (see current Article 27(1)) of the former Administrative Appeals Act (wholly amended by Act No. 9968, Jan. 25, 2010) / [2] Articles 18(1) and 20(1) of the Administrative Litigation Act, Article 18(1) (see current Article 27(1)) of the former Administrative Appeals Act (wholly amended by Act No. 9968, Jan. 25, 2010)

Plaintiff

The Minister of Health and Welfare

Seoul High Court Decision 2010Nu44957 decided June 30, 2011

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

We examine the grounds of appeal.

1. Article 18 (1) of the Administrative Litigation Act provides that "a revocation lawsuit may be instituted without going through an administrative appeal against the disposition in question under the provisions of other Acts and subordinate statutes: Provided, That this shall not apply where there is a provision that a revocation lawsuit may not be instituted without going through an adjudication on an administrative appeal against the disposition in question." Article 20 (1) provides that "a revocation lawsuit shall be instituted within 90 days from the date on which the disposition, etc. is known: Provided, That where the proviso of Article 18 (1) is applicable or where an administrative agency is able to file an administrative appeal or where it is falsely notified that a request for administrative appeal may be filed, the period from the date on which the original copy of the written adjudication is served, and Article 18 (1) of the former Administrative Appeals Act (wholly amended by Act No. 9968, Jan. 25, 2010) provides that "a request for administrative appeal shall be filed within 90 days from the date on which the disposition becomes known."

In full view of the above provisions, ① when the method of filing a suit for revocation is chosen immediately with the knowledge of an administrative disposition, a suit for revocation shall be filed within 90 days from the date on which the relevant disposition is known, and ② when the method of filing a suit for administrative appeal is selected, a suit for revocation shall be filed within 90 days from the date on which the relevant disposition is known and within 90 days from the date on which the written adjudication on the relevant administrative appeal is served. Therefore, where a suit for revocation is not filed without filing a suit for administrative appeal within 90 days from the date on which the relevant disposition is known, the subsequent suit for revocation shall be filed after the lapse of the period for filing the suit and is illegal after a ruling on an illegal administrative appeal filed after 90 days from the date on which the relevant written adjudication is served, and such revocation suit does not constitute re-compliance with the period for filing the suit.

2. According to the reasoning of the judgment below, the court below acknowledged the following facts based on its adopted evidence: (i) the defendant rendered a disposition of this case imposing a penalty surcharge of KRW 25,482,600 on September 2, 2009 on the plaintiff under Article 85-2 (1) of the National Health Insurance Act; and (ii) on September 7, 2009, the non-party to the plaintiff's Dong fee received a written disposition of this case on September 4, 2009; (iii) the plaintiff filed an administrative appeal with the Prime Minister on December 28, 2009 after the lapse of the period for requesting the administrative appeal on March 16, 2010; and (iii) the plaintiff filed an administrative appeal of this case on June 17, 2010 after receiving the written judgment; and (iii) the above administrative appeal of this case was revoked after the lapse of the period for filing the administrative appeal of this case; and thus, (iv) the judgment of this case was unlawful after the lapse of the period for the plaintiff's appeal of this case.

In light of the above legal principles, the above determination by the court below is just, and there is no error in the misapprehension of legal principles as to the period of filing a revocation suit.

3. Therefore, the appeal is 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 Kim Nung-hwan (Presiding Justice)