2018Nu35935 Revocation of Disposition to dismiss the request for examination

○○ Co., Ltd.

Attorney OOO-O

Board of Audit

Seoul Administrative Court Decision 2017Guhap56179 decided January 26, 2018

May 9, 2018

June 27, 2018

1. Revocation of the first instance judgment.

2. The instant lawsuit shall be dismissed.

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

1. Purport of claim

On November 28, 2016, the defendant revoked the decision to dismiss the request for review filed by the plaintiff.

2. Purport of appeal

The judgment of the first instance is revoked. The lawsuit of this case is dismissed primarily, and the plaintiff's claim is conjunctively.

The dismissal is dismissed.

1. Details of the disposition;

The court's explanation on this part is the same as the part of "1. Reasons for the disposition" in the judgment of the court of first instance, and therefore, it refers to Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2. Related statutes;

This Court's explanation is identical to the part of "2. related Acts and subordinate statutes of the court of first instance" (including the attached documents thereof). Thus, in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

The same shall be quoted as it is.

3. Judgment on the main defense of this case

A. The Defendant asserts that the instant dismissal decision does not constitute a disposition or adjudication directly related to the Plaintiff’s rights, obligations, or other legal relations, and thus, the instant lawsuit seeking revocation of the instant dismissal decision is unlawful.

B. The term "disposition, etc. subject to appeal litigation" means an enforcement of law with respect to a specific fact by an administrative agency, such as exercising or refusing public power, other similar administrative actions (hereinafter referred to as "disposition") and an adjudication on an administrative appeal (Article 2(1)1 of the Administrative Litigation Act). In order for an appeal litigation to be lawful, the administrative disposition subject to appeal litigation must fall under "disposition, etc.", i.e., disposition, or adjudication. The administrative disposition subject to appeal litigation refers to an act of an administrative agency under public law, which directly causes changes in specific rights and duties of citizens, such as ordering the establishment of rights or burden of obligations, or giving rise to other legal effects, such as actions, intermediation, recommendation, and de facto notification, etc. inside the administrative authority, and which do not directly cause legal changes in the legal status of the other party or other relevant persons, such as actions, recommendation, or notification, etc. inside the administrative authority cannot be subject to appeal litigation (see Supreme Court Decision 2014Du5637, Dec. 27, 2016).

C. First, prior to the enactment of Article 46-2 of the Board of Audit and Inspection Act as to whether the Defendant’s decision of rejection is a disposition of this case, the Supreme Court held that the Board of Audit and Inspection’s decision of the Board of Audit and Inspection under Article 46 of the Board of Audit and Inspection Act and its notification can only be deemed a disposition directly related to the rights, duties, and other legal relations of the citizens. Thus, in the event that the Board of Audit and Inspection’s request for examination is dismissed or rejected, an interested party can file an appeal against the original administrative disposition subject to the request for examination, and cannot file an appeal against the Board of Audit and Inspection’s request for cancellation or rejection thereof (see Supreme Court Decision 85Nu265, Jun. 25, 198, etc.). Article 46-2 of the Board of Audit and Inspection Act was newly established in 195, and thereafter, it is difficult to see that the relevant administrative agency’s request for examination and disposition under Article 43 and 466 of the Board of Audit and Inspection Act were an administrative agency’s disposition within 90 days.

D. Next, as to whether the dismissal decision in this case is the subject of a revocation suit, the request for review under Article 43 (1) of the Board of Audit and Inspection of △△△△ was merely an intent of allowing a person interested in an administrative act of the person subject to audit by the Board of Audit and Inspection to assist the Board of Audit and Inspection in carrying out the duties of the Board of Audit and Inspection by having the Board of Audit and Inspection examine the legitimacy or validity of the administrative act against the Board of Audit and Inspection, and to improve the administrative operation, and the procedure for the request for review is not a pre-trial procedure

5. According to the provisions of Articles 2 through 5 of the Administrative Appeals Act, the subject of an administrative appeal is limited to disposition and omission. However, according to the provisions of Article 43(1) of the Board of Audit and Inspection Act, not only the subject of disposition but also the subject of an administrative appeal and a request for examination by the Board of Audit and Inspection including other acts is different. According to the provisions of Article 47(1) of the Administrative Appeals Act, the decision of the administrative appeal has the legal binding force binding force binding the administrative agency that is the respondent and other relevant administrative agencies, but also the provisions of Article 46(2) of the Board of Audit and Inspection Act and Article 9(1) of the Rules on the Examination and Inspection of the Board of Audit and Inspection of the Board of Audit and Inspection of the relevant agencies that the Board of Audit and Inspection recognizes that the request for examination is reasonable and requests the head of the relevant agency to correct or take other necessary measures within two months unless there is a special reason, the head of the relevant agency can directly cancel or change the disposition by the Board of Audit and Inspection as well as the administrative agency itself's decision of administrative litigation (2).

In light of the aforementioned relevant legal principles, the content and system of the relevant laws and regulations, 'adjudication' refers to the decision made by an administrative appeals commission on an administrative appeal that is subject to a disposition or omission (Articles 2 subparag. 3 and 3(1) of the Administrative Appeals Act). The plaintiff's request for review of this case is subject to an act under the private law (private law) of an agency that is not an administrative agency, and thus the defendant's decision of rejection of this case also is not subject to the disposition. Thus, the defendant's decision of rejection of this case does not constitute 'adjudication' as stipulated in Articles 2(1)1 and 19 of the Administrative Litigation Act.

E. Therefore, the defendant's rejection decision of this case does not fall under "disposition, etc. subject to appeal", and therefore the defendant's main defense is justified.

4. Conclusion

Thus, the lawsuit of this case seeking revocation of the dismissal decision of this case is unlawful, and thus, it shall be dismissed. The judgment of the court of first instance is unfair with different conclusions, and thus the lawsuit of this case shall be dismissed.

Judge exhauster of the presiding judge

Judges Park Jae-woo

Judges Gamburh

1) The head of the agency concerned shall take corrective measures under Article 46 of the Act and other necessary measures.

When the decision requested is notified, the withdrawal of the decision pursuant to the request shall be made within two months except in extenuating circumstances.

the Board of Audit and Inspection without delay (information and communications under the Act on Information and Communications Network and Information Protection, Etc.)

notice using the network shall be included).

2) Article 40 (2) The Board of Audit and Inspection may institute an administrative litigation against a decision on a retrial by the Board of Audit and Inspection as a party.

shall not be subject to a provisional disposition suspending its effect.