Whether the act of preparing a notarial deed by a law firm is an administrative disposition subject to appeal litigation (negative)

The purpose of the administrative litigation system is to relieve citizens from infringement of their rights or interests due to the illegal disposition of administrative agencies or other exercise or non-exercise of public authority, and to properly resolve disputes over the relationship of rights or application of law. Thus, whether an administrative disposition is subject to appeal litigation ought to be determined jointly with the purpose of the administrative litigation system or the protection of the rights and interests of citizens by the judicial authority, in addition to the nature and effect of the act. In light of the purpose and function of the administrative litigation system, if an act performed by an administrative agency is merely a notarized act that proves the existence of legal relations between private persons and it is merely a notarized act that proves the existence of legal relations between private persons and thus, the resolution of disputes surrounding its validity can not be subject to appeal litigation.

Article 2 (1) 1 of the Administrative Litigation Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

Plaintiff 1 and one other

Law Firm Good Faith

Seoul High Court Decision 2009Nu34596 decided August 19, 2010

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

The plaintiffs' grounds of appeal are also examined.

The purpose of the administrative litigation system is to relieve citizens from infringement of their rights or interests due to the illegal dispositions of administrative agencies, the exercise or non-exercise of public authority, and to properly resolve disputes over the relationship of rights or application of law in public law. Thus, whether an administrative disposition is subject to appeal litigation should be determined on the basis of the purpose of the administrative litigation system or the function of protecting the rights and interests of citizens by the judicial power, in addition to the nature and effect of the act.

In light of the purpose, function, etc. of the administrative litigation system, in a case where an administrative agency merely proves the existence of legal relations between private persons and it is merely an notarial act which publicly establishes the existence of legal relations, and thus the resolution of disputes surrounding its validity is entrusted to the judicial principle or it is planned to appeal through other procedures than the administrative litigation under the law based on such act, it is reasonable to deem that it cannot be subject to an appeal litigation (see, e.g., Supreme Court Decisions 9Du9414, Aug. 13, 191; 9Du1264, Mar. 28, 2000).

In the same purport, the court below is just in holding that the preparation of the Notarial Deed in this case cannot be deemed an administrative disposition subject to appeal litigation, and there is no illegality such as misunderstanding legal principles as to the subject of appeal litigation as otherwise alleged in the ground of appeal

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 Sang-hoon (Presiding Justice)