2015Nu33549 Confirmation of illegality

A

Chairman General

Seoul Administrative Court Decision 2014Guhap15177 decided January 13, 2015

June 16, 2015

July 7, 2015

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance is revoked, and it is confirmed that the defendant's failure to respond to the result of the civil petition filed by the plaintiff on March 4, 2014 is illegal.

1. Basic facts

If evidence Nos. 1 through 4, No. 1, and No. 1 are added to the purport of the whole pleading, each of the following facts is recognized:

A. On February 13, 2014, the Plaintiff submitted to the Defendant a civil petition stating that “The Board of Audit and Inspection shall be responsible for the illegal cases of the Board of Audit and Inspection attached to one’s tables.” Then, on March 4, 2014, the Plaintiff submitted a civil petition containing the following contents (hereinafter “instant civil petition”).

On February 13, 2014, he/she fails to reply to a civil petition filed on or before submitting again. On December 29, 2013, 2013, if there is an objection to the case, he/she is concluded on the civil petition requesting the presentation of evidence without reply on January 14, 2014, and he/she is judged to have no objection to the case, and he/she directly manufactures a leaflet and appeals to the people. Since the case attached to the block is an administrative case of the illegality (including the violation of Article 15 of the Civil Petitions Treatment Act) of each ministry (including the Board of Audit and Inspection) and thus, he/she takes a lawful administrative action and takes a responsibility for the people, and the person who has executed an illegal administrative action is responsible for the illegal (including the violation of Article 15 of the Civil Petitions Treatment Act) of the public after the Board of Audit and Inspection took responsibility for the people from the illegal acts to the public.

B. On May 8, 2014, the Defendant sent a reply to the Plaintiff on March 18, 2014, stating that “the Plaintiff shall have dice a civil petition for the Board of Audit and Inspection on March 7, 2014, and March 18, 2014, March 19, 19, and April 2, 201.” The Defendant sent a reply to the Plaintiff that “the civil petition for the issuance of a thickness shall be able to refer to the future audit.”

2. Summary of the plaintiff's assertion

In accordance with Article 15 of the Civil Petitions Treatment Act, the plaintiff asserts to the purport that although the defendant has a duty to notify the plaintiff of the treatment results of the civil petition of this case filed by the plaintiff, the plaintiff only responded to refer the civil petition of this case to the work of this case and failed to reply to specific treatment results, the plaintiff's failure to respond to the plaintiff

3. Determination

(a) Relevant statutes;

Article 2 (2) of the Civil Petitions Treatment Act provides that civil petitioners shall notify the civil petitioners of the processing results of civil petitions filed by civil petitioners in writing. Article 15 (1) of the Civil Petitions Treatment Act provides that civil petitioners shall be subject to a disposition or other specific action (hereinafter referred to as "civil petition") against an administrative agency.

In addition, Article 2 (2) 6 of the Enforcement Decree of the same Act provides that "request for resolution of matters that infringe on the rights of the people or cause inconvenience or burden to the people (hereinafter "civil petition for grievance") due to illegal, unjust, or passive disposition (including factual act and omission) and unreasonable administrative system of the administrative agency shall also fall under one of civil petition affairs.

B. The nature of the civil petition of this case and whether to reply to the result

In light of the above provisions, since the civil petition of this case can be seen as a civil petition for grievance, it is reasonable to deem that the defendant has a duty to notify the plaintiff of the treatment results of the civil petition of this case.

However, it is the inherent duty of the Board of Audit and Inspection to ask the head of an affiliated agency to take disciplinary action against a public official or to correct illegal or unjust acts falling under the grounds for disciplinary action. The defendant sent a reply to the plaintiff on May 8, 2014 to refer to the civil petition of this case when conducting the audit in the future. Thus, even though the above reply did not correct illegal administration, it may be deemed that there is no satisfactory result from the plaintiff's standpoint. However, it is reasonable to view that the defendant notified the result of treatment of the civil petition of this case in the legal perspective.

C. The subject matter of the lawsuit seeking confirmation of illegality of omission and the legitimacy of the lawsuit of this case

The lawsuit of this case is ultimately based on the premise that there is no specific corrective measure of the defendant with respect to the administrative case that the plaintiff raised as the problem, and it is subject to the lawsuit for confirmation of illegality of omission.

Meanwhile, an administrative agency’s omission, which is the object of a lawsuit seeking confirmation of illegality of omission, refers to an administrative agency’s failure to take a certain measure within a considerable period of time despite the existence of a legal obligation to take a certain measure against a party’s request (see, e.g., Supreme Court Decision 909391, Nov. 8, 1991). Therefore, in order for a legal action seeking a disposition against an administrative title, which is legally obligated to take a certain measure, as an enforcement of the law on specific facts

However, in the case of this case, the plaintiff requires the observance of the abstract duty of fair enforcement, which is an administrative agency's response to the defendant, and upon response to the civil petition of this case, the plaintiff takes specific corrective measures against the defendant who has no legal authority or duty to directly conduct the relevant disposition, and seeks notification of the result thereof. This cannot be deemed as satisfying the requirements of the lawsuit for confirmation of illegality of omission. Thus, the plaintiff cannot be viewed as being unlawful in itself.

4. Conclusion

Therefore, the lawsuit of this case is unlawful and thus dismissed. The judgment of the court of first instance is just in its conclusion, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge shall admonish a judge;

Judges Seo-soon

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