In a case where the Mayor of the City Mayor was requested by the Board of Audit and Inspection to suspend the kind of disciplinary action against B from the Board of Audit and Inspection pursuant to Article 32 of the Board of Audit and Inspection Act, and the Board of Audit and Inspection requested a review on the request for disciplinary action against B, and the Board of Audit and Inspection rejected the request for review and sought revocation of the decision for disciplinary action against B and its review, and the Mayor of the Board of Audit and Inspection brought a lawsuit seeking revocation of the decision for review by the Board of Audit and Inspection, the case holding that the request for disciplinary action by the Board of Audit and Inspection and the decision for review cannot be deemed an

The case holding that in case where the Board of Audit and Inspection's request for disciplinary action is not an unfavorable provision even if the head of the agency in receipt of the request for disciplinary action does not take a disposition as requested, and it does not affect the rights and duties of the interested parties only when an administrative agency takes a certain administrative disposition upon the request for disciplinary action, and the request for disciplinary action itself does not directly change the rights and duties of the public official subject to the request for disciplinary action, and thus, it is merely an interim disposition in the process of making a request for disciplinary action, submission of disciplinary procedure and disciplinary action to the Board of Audit and Inspection pursuant to Article 36 (2) of the Board of Audit and Inspection Act, and the Board of Audit and Inspection requested the cancellation of the request for disciplinary action and its review decision, and the mayor of the Board of Audit and Inspection filed a lawsuit seeking the cancellation of the decision of review by the Board of Audit and Inspection, the request for disciplinary action shall not be deemed to be an administrative disposition, and the request for disciplinary action shall not be deemed to be an administrative disposition for which the Board of Audit and Inspection's request for disciplinary action and inspection is permitted under the Act Act.

Articles 2(1)1, 3 subparag. 4, and 45 of the Administrative Litigation Act; Articles 31, 32, 33, 34, 36(1) and (2), and 40(2) of the Board of Audit and Inspection Act

Plaintiff 1 and one other (Law Firm Chungcheong, Attorneys Hho-ho et al., Counsel for the plaintiff-appellant)

Board of Audit

Seoul High Court Decision 2013Nu3018 decided February 19, 2014

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

1. Regarding ground of appeal No. 1

A. Details of the instant lawsuit

In accordance with Article 32 of the Board of Audit and Inspection Act, when the Mayor of Seoul Special Metropolitan City received a request for disciplinary action against the plaintiff 1 as suspension from office under Article 32 of the Board of Audit and Inspection Act, the defendant filed a request for reexamination of the above disciplinary action against the defendant pursuant to Article 36 (2) of the Board of Audit and Inspection Act, and the defendant dismissed the above request for reexamination. As a result, the plaintiff 1 sought the request of the Board of Audit and Inspection for the above disciplinary action and the cancellation of the decision for reexamination thereof

B. Whether the request for the instant disciplinary action and the decision on review thereof are subject to appeal litigation

1) An administrative disposition, which is a subject of an appeal litigation, means an act of an administrative agency’s public law that directly changes in the legal status of the other party or other persons concerned, such as an order to establish a right or to bear an obligation with respect to a specific matter, or an occurrence of other legal effects with respect to a specific matter, etc., which may cause direct legal changes in the specific rights and obligations of the people. An act, etc., which does not directly cause legal changes in the legal status of the other party or other persons concerned, such as an act within an administrative authority, referral, solicitation, and de facto notification, cannot be subject to an appeal litigation (see Supreme Court Decision 2

2) From the perspective of the plaintiff's request for disciplinary action in this case, ① the Board of Audit and Inspection may request the competent Minister or the appointing authority to take disciplinary action against the public official falling under the ground for disciplinary action (Article 32(1)); the head of an agency which has received a request for disciplinary action (Article 32(11)); and does not provide that disciplinary action shall be taken as requested by the head of the agency which has received the request for disciplinary action; ② the competent Minister or the appointing authority shall request the relevant disciplinary committee or the personnel committee within 10 days from the date of receipt of the request for disciplinary action; ② the competent Minister or the appointing authority upon receipt of the request for disciplinary action under the Board of Audit and Inspection Act shall notify the Board of Audit and Inspection of the fact within 15 days (Article 32(2)); the Board of Audit and Inspection may directly request the disciplinary committee established at the immediately higher agency established with the relevant disciplinary committee to take disciplinary action or review; ④ No request for disciplinary action shall be made in accordance with the provisions of disciplinary action, other than the relevant disciplinary action or disciplinary action.

3) In terms of Plaintiff 1, who is a public official subject to the instant request for disciplinary action, (1) in the event of a disciplinary action, it is sufficient to dispute the validity of the disciplinary action, and (2) in the event that a disciplinary action is not conducted, the public official subject to the instant request for disciplinary action has the effect of excluding the relevant public official from the appointment of promotion during the period for which the disciplinary action is requested by the disciplinary committee, etc. after being referred to the disciplinary procedure, but this does not take effect only by the request for disciplinary action, but it does not take effect as a result of the request for temporary or temporary action following the submission of the procedures for disciplinary action, and thus,

4) Ultimately, the instant request for disciplinary action is merely an intermediate disposition in the process leading to the request for disciplinary action, referral to disciplinary procedure, and disciplinary action, and it cannot be deemed an administrative disposition that is the object of appeal litigation, and there is no practical benefit to seek revocation of the request for disciplinary action itself, as it is merely an intermediate disposition in the process of leading to the “request for disciplinary action, referral to disciplinary procedure, and disciplinary action,” and there is no practical benefit to seek revocation of the request for disciplinary action itself.

5) Meanwhile, the head of the relevant institution, etc. under the Board of Audit and Inspection Act may request the Board of Audit and Inspection to review the determination of compensation under Article 31, the request for disposition under Articles 32, 33, and 34 (see Articles 36(1) and (2) and 40(2). Article 40(2) of the Board of Audit and Inspection Act provides that “The Board of Audit and Inspection may bring an administrative lawsuit against a judgment made by the Board of Audit and Inspection as a party to an administrative litigation.” However, Article 40(2) of the Board of Audit and Inspection Act provides that “The Board of Audit and Inspection may bring an administrative lawsuit against a judgment made by the Board of Audit and Inspection as a party to an administrative litigation regardless of the party’s ability, interest in a lawsuit, or eligibility for an administrative litigation,” and on the result of reexamination on the request for disposition under Articles 31, 32, 33, and 34 of the Board of Audit and Inspection Act, on the premise that the requirements for general litigation are met.

C. Sub-decision

In the foregoing purport, the lower court’s determination that the instant lawsuit seeking revocation cannot be deemed unlawful on the grounds that the instant request for disciplinary action and the decision on review thereof cannot be deemed an administrative disposition subject to appeal litigation. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on the eligibility for an appeal

2. Regarding ground of appeal No. 2

The lower court determined that the instant lawsuit filed by the head of the Seoul Special Metropolitan City, which was not a party, is unlawful on the ground that it is difficult to interpret Article 40(2) of the Board of Audit and Inspection Act as a provision providing the Plaintiff’s ability to an administrative agency with no party capacity.

In light of the aforementioned legal principles and records, the lower court did not err by misapprehending the facts or by misapprehending the relevant legal principles, as otherwise alleged in the grounds of appeal, thereby adversely affecting the conclusion of the judgment.

3. As to the third ground for appeal

A. An agency suit is an “litigation instituted when there is a dispute over the existence or exercise of authority between agencies of the State or a public organization” (Article 3 subparag. 4 of the Administrative Litigation Act). An agency suit is an objective suit aimed at ensuring legality of administration, and may be instituted only by a person prescribed by law, in the case prescribed by law (Article 45 of the Administrative Litigation Act).

Article 40(2) of the Board of Audit and Inspection Act provides that “The Board of Audit and Inspection may file an administrative suit against a judgment on a retrial of the Board of Audit and Inspection as a party.” However, as seen above, the nature and content of the institution suit as seen earlier, the request for disciplinary action by the Board of Audit and Inspection or the decision on review thereof cannot be deemed to have caused legal binding power in itself, if the provisions pertaining to this institution suit are applicable under Article 40(2) of the Board of Audit and Inspection Act, the period for filing a lawsuit in the institution suit should have been stipulated together, but it shall not be deemed that there is no such provision, but in full view of the form, content, history, and the structure of the relevant provisions under Article 40(2) of the Board of Audit and Inspection Act, Article 40(2) of the Board of Audit and Inspection Act does not allow the Board of Audit and Inspection to grant an institution suit against the Plaintiff to the Seoul Special Metropolitan City Mayor. Accordingly, any Act, including the Administrative Litigation Act, including the Plaintiff’s institution suit, which is instituted by the Seoul Special Metropolitan City Mayor.

B. For the foregoing purpose, the lower court’s determination rejecting the Plaintiff’s assertion that it constitutes a dispute over the existence or exercise of authority between the two agencies, which did not err by misapprehending the facts or by misapprehending the relevant legal doctrine, contrary to what is alleged in the grounds of appeal.

4. Conclusion

Therefore, all appeals are 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 Lee Ki-taik (Presiding Justice)