COS Industry Development Co., Ltd. (Law Firm Digital Ballast, Attorney Fixed-Tech et al., Counsel for defendant-appellant)

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

June 24, 2009

1. On July 31, 2008, the part of the instant lawsuit that the Plaintiff seeks revocation of the approval of the housing construction project plan for the Defendant on July 31, 2008.

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be borne by the Plaintiff.

The plaintiff's application for approval of the housing construction project plan dated July 31, 2008 against the defendant and the rejection disposition as of November 25, 2008 shall be revoked.

1. Details of the disposition;

A. The Plaintiff, a company running a housing construction business, filed an application with the Defendant for the approval of the housing construction project plan for eight parcels, including the Mapo-Eup, Ypo-si, Gwangju-si, but the Defendant, on July 31, 2008, notified the following (hereinafter “instant first disposition”).

B. On October 27, 2008, the Plaintiff filed an objection (hereinafter “instant objection”) with the revocation of the instant first disposition pursuant to the Civil Petitions Treatment Act (hereinafter “Civil Petitions Treatment Act”). On October 27, 2008, the Plaintiff notified the Plaintiff on November 25, 2008 that the Defendant cannot accept the instant objection (hereinafter “instant second disposition”).

When there is an objection to this disposition contained in the main sentence, an objection against the rejection disposition against the head of the administrative agency under the Civil Petitions Treatment Act may be filed within 90 days from the date of receiving the rejection disposition, and it is also known that the administrative agency may file an administrative appeal with the disposition agency or the ruling agency under the Administrative Appeals Act or file an administrative litigation with the administrative court under the Administrative Litigation Act within 90 days from the date of becoming aware of the disposition, regardless of whether the objection has been filed.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 9, Gap evidence No. 10-1, 2, and Gap evidence No. 11, the purport of the whole pleadings

2. Whether the part concerning the revocation claim against the disposition No. 1 among the lawsuit of this case is legitimate

We examine whether this part of the lawsuit is legitimate ex officio. According to Article 20(1) of the Administrative Litigation Act, a revocation lawsuit must be filed within 90 days from the date on which the plaintiff knew of the disposition, etc. However, as seen earlier, as long as the plaintiff filed an objection seeking the revocation of the first disposition of this case on October 27, 2008, the plaintiff was aware of the first disposition of this case at the latest around this time. The lawsuit of this case was filed on February 23, 2009 after the lapse of 90 days from this time, and the period for filing the lawsuit of this case has expired.

The plaintiff asserts that the objection of this case constitutes an administrative appeal, and thus, the lawsuit of this case is legitimate within 90 days from the time when the decision of this case was notified of the disposition No. 2. However, the objection of this case is in accordance with Article 18 of the Civil Petitions Act, and cannot be deemed to constitute an administrative appeal against the disposition No. 1, and Article 18(3) of the Civil Petitions Act explicitly states that an administrative appeal against the disposition of rejection may be filed under the Administrative Appeals Act or under the Administrative Litigation Act regardless of whether or not the objection is raised. In light of Article 18(3) of the Civil Petitions Act, the objection of this case does not affect any time during the period of filing a lawsuit against

In addition, the Plaintiff filed a civil petition for grievance with the content that the Plaintiff seeks revocation of the disposition No. 1 of this case with the Anti-Corruption and Civil Rights Commission, and the Anti-Corruption and Civil Rights Commission sent the details of the petition and written resolution to the Defendant, so long as the civil petition for grievance was filed. However, according to the evidence No. 5 and No. 6, the Anti-Corruption and Civil Rights Commission merely decided to recommend the Defendant to correct the petition for grievance on October 23, 2008 and notified the Defendant of the contents of the resolution at that time. There is no evidence to prove that the Anti-Corruption and Civil Rights Commission sent the petition for grievance itself to the Defendant or the ruling authority. Furthermore, the civil petition for grievance is a system to advise the head of the relevant administrative agency, etc. to correct the inconvenience and burden of the public by properly recommending the correction and to rectify the inconvenience and burden of the civil petition for grievance under the Administrative Appeals Act. Thus, this part of the Plaintiff’s assertion is without merit.

3. Determination as to the revocation claim of the second disposition of this case

A. Determination on this safety defense

The defendant asserts that the second disposition of this case is merely the purport of confirming that the first disposition of this case is justifiable as a decision on objection under the Civil Petitions Act, and it cannot be viewed as a disposition subject to administrative litigation.

The plaintiff's objection under Article 18 of the Civil Procedure Act was dismissed by the defendant. However, according to the evidence Nos. 10-2 and No. 11 of the Civil Procedure Act, the contents of the Disposition No. 1 of this case are the defendant's refusal of the plaintiff's application for cancellation or withdrawal of the Disposition No. 1 of this case and for approval of the housing construction project plan. In light of the contents and circumstances, it is reasonable to view that the Disposition No. 2 of this case constitutes a "disposition" as an act directly affecting the plaintiff's specific rights and obligations. Therefore, the defendant'

B. Whether the disposition No. 2 of this case is legitimate

As seen earlier, Article 18 of the Civil Procedure Act against the administrative agency which originally rendered the disposition of refusal is subject to an adjudication under the proviso of Article 19 of the Administrative Litigation Act in that it is a rejection of an objection under Article 18 of the Civil Procedure Act against the administrative agency which rendered the disposition of refusal. Thus, in light of the above proviso of the fact that the above proviso is limited to cases where the adjudication itself is based on an inherent error in the adjudication itself, the pertinent lawsuit of revocation of the adjudication should be dismissed, regardless of the legitimacy of the original disposition (see Supreme Court Decision 93Nu16901 delivered on January 25, 1994).

However, the Plaintiff asserted only the grounds for illegality of the first disposition, which can be seen as the original disposition of the instant second disposition, and sought the revocation of the second disposition of the instant case, and there is no other assertion of illegality of the instant second disposition itself or there is no evidence to acknowledge it. Therefore, the second disposition of the instant case is lawful.

4. Conclusion

Therefore, among the lawsuit of this case, the part seeking the revocation of the disposition No. 1 of this case is unlawful and dismissed, and the remaining claims of the plaintiff are dismissed as it is without merit. It is so decided as per

[Attachment Form 5]

Judges Cho Jong-sik (Presiding Judge)