[1] The effects of a formative ruling

[2] In a case where a disposition agency re-re-re-exposes the original disposition after a determination on the formative revocation of the original disposition becomes final and conclusive, whether the disposition is a disposition that is subject to appeal

[3] In cases where a third party, other than the other party to the original disposition, files an administrative appeal to revoke the original disposition and a ruling by the ruling authority, whether to claim a method of appeal that can be filed by the other party to the original disposition, and a claim for revocation of the said original disposition is an assertion of the inherent defect in the original disposition

[4] The case reversing the court below's decision that did not exercise the appropriate right of explanation even though it is unclear whether a pharmaceutical company takes either of the disposition of revocation lacking the formation decision and disposition of the Minister of Health and Welfare

[1] According to Article 32 (3) of the Administrative Appeals Act, when a ruling authority deems that a request for a cancellation trial is well-grounded, it shall revoke or change the disposition, or order the disposition authority to revoke or change the disposition. Thus, if the contents of the ruling on administrative appeal are not to order the disposition authority to revoke the disposition, but if the ruling authority voluntarily revokes the disposition, the pertinent disposition is naturally revoked and extinguished without being subject to a separate administrative disposition based on the formation of the ruling.

[2] The ruling on revocation of the permission for manufacture of the pertinent pharmaceutical product is a so-called formation ruling that the Minister of Health and Welfare revokes the permission for manufacture of the above pharmaceutical product in the position of the ruling authority. As such, the permission for manufacture of the above pharmaceutical product was naturally revoked and extinguished by the revocation ruling, and the revocation of the above permission again thereafter, the pertinent disposition that revoked the above permission is not a party to the revocation ruling, and thus, it is not only the notification of the fact or concept that the above permission disposition is revoked and extinguished, but also it is merely a notification of the fact or concept that the above permission disposition is not known to the above company, and it is not a new formative act that revokes and terminates

[3] In the case at issue, where a third party, other than the other party to the original disposition, files an administrative appeal to revoke the original disposition, and the ruling authority has filed an appeal against the original disposition, the other party to the original disposition shall be bound to file an appeal against the original disposition, and in this case, the ruling differs from the original disposition, and thus, seeking the revocation of the ruling is an assertion of the original disposition

[4] Where it is unclear whether a pharmaceutical company takes either of the disposition of revocation in lack of formation and disposition by the Minister of Health and Welfare as the subject matter of the lawsuit in question, the case reversing the judgment below which did not take such measures, on the ground that there was an unlawful act of exercising the right of explanation on the ground that the court below did not exercise the right of explanation

[1] Article 32 (3) of the Administrative Appeals Act, Article 2 of the Administrative Litigation Act / [2] Article 32 (3) of the Administrative Appeals Act, Article 1 of the Administrative Litigation Act / [3] Articles 1 [general administrative disposition], 2, 12, and 19 of the Administrative Litigation Act, Article 37 of the Administrative Appeals Act / [4] Article 1 [general administrative disposition], Articles 2, 8 (2), and 19 of the Administrative Litigation Act, Article 126 of the Civil Procedure Act

[1] [2] Supreme Court Decision 93Nu1879 delivered on April 12, 1994 (Gong1994Sang, 1485), Supreme Court Decision 96Nu14678 delivered on May 30, 1997 (Gong1997Ha, 1907) / [3] Supreme Court Decision 94Nu1592 delivered on June 13, 1995 (Gong1995Ha, 2414), Supreme Court Decision 96Nu1461 delivered on September 12, 1997 (Gong197Ha, 3142), Supreme Court Decision 96Nu1091 delivered on December 23, 197 (Gong198Sang, 518) / [3] Supreme Court Decision 96Nu129498 delivered on June 329, 198 (Gong194, 19294) / [196Nu329497985 delivered on June 19294, 19697

Bobam Co., Ltd. (Attorney Su-gil et al., Counsel for the defendant-appellant)

The Minister of Health and Welfare

Same-sex Pharmaceutical Co., Ltd. (Attorney Park Jong-ho, Counsel for the defendant-appellant)

Seoul High Court Decision 97Gu4144 delivered on September 5, 1997

The judgment below is reversed and the case is remanded to Seoul High Court.

Judgment ex officio is made.

According to the reasoning of the judgment of the court below, the court below rejected the main defense of the defendant's defendant's ground that the defendant revoked the above permission disposition again on January 23, 1997, based on the cancellation ruling of this case ordering the cancellation of the above permission disposition, and thus, the above permission disposition of this case constitutes a disposition revoking the above permission disposition of this case in accordance with the cancellation ruling of this case, and thus the above disposition of this case is not subject to appeal litigation, and further, the court below rejected the main defense of the defendant's ground of appeal against the plaintiff's ground of appeal against the plaintiff's ground that the above disposition of this case does not constitute a disposition that becomes subject to appeal litigation, and further, the defendant's disposition of this case is unlawful on the ground that the above permission disposition of this case was not identical or similar to the name of the drug which was already permitted by the same-sex medication corporation and the name of the drug already permitted to the above non-party company (the same-party company's name and similar exchange).

However, according to Article 32 (3) of the Administrative Appeals Act, a ruling authority shall revoke or change a disposition, or order the disposition authority to revoke or change the disposition when the request for a cancellation trial is deemed reasonable. Thus, if the ruling of the administrative appeal is not to order the disposition authority to revoke or change the disposition, but it is to revoke the disposition by itself, the ruling authority shall automatically revoke and extinguish the disposition without any separate administrative disposition being revoked (see, e.g., Supreme Court Decisions 93Nu1879, Apr. 12, 1994; 96Nu14678, May 30, 197). Accordingly, according to the records, the cancellation ruling of this case is clear that the defendant himself/herself is the so-called formation ruling revoking the above manufacture approval of the plaintiff, and the disposition of this case against the plaintiff is revoked or extinguished by the ruling of the manufacture approval of this case, and there is no violation of law by ascertaining that the above disposition of this case was a new administrative disposition subject to revocation or extinguishment, which is not an object of an appeal litigation.

In addition, as in this case, where a third party, other than the other party to the original disposition, filed an administrative appeal to revoke the original disposition, the other party to the original disposition, is bound to file an administrative appeal against the original disposition. In this case, the ruling differs from the original disposition, and thus, seeking revocation of the ruling is an assertion of proper illegality in the original disposition (see Supreme Court Decision 96Nu10911, Dec. 23, 1997). As duly established by the court below, the court below issued the revocation ruling of this case, which is the object of appeal before the disposition of this case, prior to the disposition of this case, and the record reveals that the defendant's act, which the plaintiff revoked the marketing approval of the manufacture of medicines to the plaintiff, was illegal, and thus, the court below should have asserted that the plaintiff filed the lawsuit of this case for relief. Thus, even if the purport of the plaintiff's claim is stated in the disposition of this case, it cannot be viewed that the revocation of the disposition of this case, which is the object of appeal litigation, should not be viewed as the plaintiff's revocation of the disposition of this case.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Chocheon-sung (Presiding Justice)