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

Board of Audit

January 22, 2014

Seoul Administrative Court Decision 2012Guhap1621 decided December 20, 2012

1. All of the instant lawsuits are dismissed.

2. The costs of the lawsuit are assessed against the Plaintiffs.

On October 17, 201, the judgment of the court of first instance is revoked. 1. The judgment of the court of first instance is revoked. 1. The judgment of the court of first instance under Article 38 of the Board of Audit and Inspection Act, which was issued by the defendant on March 15, 201, and Article 38 of the Board of Audit and Inspection Act, which was made on March 15, 2012, shall be revoked. 2. The judgment of the court of first instance is revoked (this court was corrected by the Chairman of the Board of Audit and Inspection by the Board of Audit and Inspection at the request of the plaintiffs).

1. Basic facts

A. The Defendant performed an institution operation audit on Gwanak-gu in Seoul Special Metropolitan City from March 3, 201 to March 25, 2011 as an audit institution established under Article 97 of the Constitution and the Board of Audit and Inspection Act.

B. On October 17, 2011, the Defendant: (a) held office as the head of Gwanak-gu in Seoul Special Metropolitan City (hereinafter “the head of Gwanak-gu”); and (b) held office as the head of Gwanak-gu in Seoul Special Metropolitan City, Seoul Special Metropolitan City ○○○○○○ and the head of the team; and (c) held office as the head of the same division; (b) held office as the head of the Gu, in charge of managing and selling the land allotted by the authorities in recompense for development outlay under Article 12-1 (hereinafter “instant redevelopment association”); (c) sold the land allotted by the authorities in recompense for development recompense of development outlay (hereinafter “instant land”) and violated the duty of good faith under Article 48 of the Local Public Officials Act (amended by Act No. 11690, Mar. 23, 2013; hereinafter the same) on the ground that the type of disciplinary action against the above three persons (hereinafter “non-party 1”) was not determined as the type of disciplinary action against the Plaintiff.

C. Accordingly, the Plaintiff-gu Seoul Special Metropolitan City Mayor filed a request for reexamination with the Defendant pursuant to Article 36(2) of the Board of Audit and Inspection Act, and the Defendant dismissed the said request for reexamination on March 15, 2012 (hereinafter “instant decision on reexamination”).

[Reasons for Recognition] Unsatisfy, entry of Gap evidence 7 to 9, the purport of the whole pleadings

2. Whether the lawsuit of this case is lawful

A. The defendant's main defense

The plaintiffs claim that the sale price of the land allotted by the redevelopment association of this case is reasonable based on the appraised value conducted by the redevelopment association of this case upon the request for purchase of the redevelopment association of this case. However, the defendant's demand for disciplinary action against the plaintiff 1, etc. on the ground that the plaintiff 2, the plaintiff 1, and the plaintiff 1 (hereinafter "the plaintiff 1, etc.") much lower than the market price was caused by the sale price based on the appraised value of the redevelopment association of this case and caused damage to the Seoul Special Metropolitan City, which is the owner. Thus, the defendant's claim that the request for disciplinary action of this case and the review of this case should be revoked is merely a prior and intermediate act between the administrative agencies with no forced power and does not constitute a disposition subject to appeal, and the plaintiff 1, the administrative agency of this case does not have the ability to become the subject of rights and obligations, and there is no standing to sue as to the decision of the review of this case.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) The Defendant asserts that the request for disciplinary action of this case is merely a prior and intermediate act between administrative agencies without forced force and thus does not constitute an appeal litigation. The Plaintiffs claim that Article 32(11) of the Board of Audit and Inspection Act recognizes compulsory power in the request for disciplinary action of the Board of Audit and Inspection by stipulating that “the head of an agency that receives a request for disciplinary action, reprimand or dismissal from the Board of Audit and Inspection shall take a disposition in accordance with the pertinent procedure by the date determined by the Board of Audit and Inspection” and thus, the request for disciplinary action of this case is not merely a notification or recommendation of facts, or presentation of opinion, but is an exercise of public authority directly affecting the rights and duties of interested parties and thus is subject to appeal litigation. Thus,

In principle, an administrative disposition, which is the object of an appeal litigation, refers to an act of an administrative agency under public law and directly related to the rights and obligations of the people, such as ordering the establishment of rights or the burden of obligations under Acts and subordinate statutes, or directly causing other legal effects on a specific matter. Thus, an act, etc., which does not directly cause legal changes in the legal status of the other party or related persons, such as actions, intermediation, solicitation, and de facto notification, inside the administrative agency, cannot be subject to appeal litigation (see, e.g., Supreme Court Decision 96Nu6202, Jul. 10, 1998). Therefore, an internal act, interim disposition, or mutual act of an administrative agency, in principle, cannot be deemed an administrative disposition subject to appeal litigation. However, even in an interim disposition, if the rights of the people are restricted

Article 32(1) of the Board of Audit and Inspection Act provides that the head of the relevant agency or the Board of Audit and Inspection shall make a request for a review on the request for disciplinary action pursuant to Article 36(2) of the Board of Audit and Inspection Act, and the defendant shall dismiss the request for review. Article 32(11) of the Board of Audit and Inspection Act provides that the head of the agency in receipt of the request for disciplinary action or reprimand from the Board of Audit and Inspection shall make a disposition in accordance with the relevant procedures until the date determined by the Board of Audit and Inspection. However, the meaning of the provision "shall make a disposition in accordance with the relevant procedures" is that the head of the relevant agency shall submit the person subject to disciplinary action (hereinafter referred to as "person subject to disciplinary action, etc.") to the Board of Audit and Inspection (hereinafter referred to as the "Board of Audit and Inspection") and it shall not be interpreted that the person subject to disciplinary action must be subject to disciplinary action, or that it shall be limited to the type requested by the Board of Audit and Inspection only within 0 months from the date of receipt of the request for disciplinary action or disciplinary action.

Ultimately, the only legal effect of the request for disciplinary action against a person subject to disciplinary action or the head of the relevant agency is referred to the disciplinary committee, etc. The Board of Audit and Inspection Act as well as the Board of Audit and Inspection Act and other relevant Acts and subordinate statutes including the State Public Officials Act can not find any provision that the disciplinary action itself may be a disadvantage to a person subject to disciplinary action, and may decide not to take disciplinary action as a result of deliberation by the disciplinary committee, etc., and it cannot be deemed that the request for disciplinary action by the Board of Audit and Inspection itself does not directly affect any direct legal effect against the person subject to disciplinary action (it shall not be deemed that any disadvantage has occurred to the person subject to disciplinary action, even though the request for disciplinary action was made, considering the internal regulations of the plaintiffs, and it is reasonable to view that the interests of the person subject to disciplinary action are infringed only when the administrative agency takes disciplinary action by such request (see, e.g., Supreme Court Decisions 70Nu82, Sep. 22, 1970; 86Nu62, Sept. 9, 1986).

2) Furthermore, regarding the existence of a party’s capacity in the Seoul Special Metropolitan City Mayor. An appeal litigation under the Administrative Litigation Act is filed against “disposition, etc.” or omission by an administrative agency (Article 3 subparag. 1 of the Administrative Litigation Act) and an administrative litigation is governed by the provisions of the Civil Procedure Act pursuant to Article 8(2) of the Administrative Litigation Act, and thus, in order to file an appeal litigation, it is required to have a general capacity and capacity to be the subject of the lawsuit as well as a general capacity to be the subject of the lawsuit in order to bring an appeal litigation. Therefore, a natural person and a juristic person generally recognized as a party’s capacity, an unincorporated association or foundation, as well as a non-legal entity’s institution or an administrative agency, which is not a party’s capacity, cannot become a plaintiff of the appeal litigation, barring special provisions in relevant Acts and subordinate statutes. Thus, the head of Seoul Special Metropolitan City, which is merely an administrative agency having no capacity to become a party, cannot file an appeal litigation seeking the revocation of the decision of this case. However, in exceptional cases where one party’s demand is not asserted.

However, as seen earlier, the decision of the review of this case does not provide for any disadvantage to the Mayor of Seoul Special Metropolitan City, etc. or that there may be infringement of rights in the case of the decision of the review of this case. Therefore, it cannot be deemed that the party ability is exceptionally recognized.

In regard to this, the head of the Seoul Special Metropolitan City shall claim that the Board of Audit and Inspection may institute an administrative litigation against the judgment of the Board of Audit and Inspection on the retrial of this case. However, Article 40(2) of the Board of Audit and Inspection Act provides that the Board of Audit and Inspection shall not institute an administrative litigation against the original disposition on the premise of the disposition on the original disposition subject to a request for reexamination (original disposition) and that the Board of Audit and Inspection may institute an administrative litigation against the judgment of the Board of Audit and Inspection (see, e.g., Supreme Court Decision 84Nu91, Apr. 10, 1984). It is reasonable to interpret that Article 40(2) of the Board of Audit and Inspection Act has the so-called principle that the Board of Audit and Inspection may institute an administrative litigation against the determination on the compensation of the Board of Audit and Inspection (see, e.g., Supreme Court Decision 84Nu91, Apr.

3) In addition, in light of the provisions of Article 40(2) of the Board of Audit and Inspection Act, the Plaintiff asserts that the instant lawsuit against the Defendant constitutes an agency litigation which may be brought in cases where there is a dispute over the existence or exercise of authority between the two agencies. According to Articles 3 subparag. 4 and 45 of the Administrative Litigation Act, an agency litigation may be brought only in cases where there is a dispute over the existence or exercise of authority among the agencies of the State or public organizations, and where there is a legal form of litigation between the agencies of the State or public organizations, the agency litigation may be brought only in cases where there is a matter of law as prescribed by the law. Considering the nature and content of such agency litigation, Article 40(2) of the Board of Audit and Inspection Act provides the form and content of Article 40(2) of the Board of Audit and Inspection Act, history, and the structure of relevant regulations, Article 40(2) of the Board of Audit and Inspection Act can only be deemed as a disposition subject to appeal litigation (Article 2 subparag. 1 of the Administrative Litigation Act). 2000.

3. Conclusion

All of the instant lawsuits are dismissed (the first instance judgment which the Chairman of the Board of Audit and Inspection held as the defendant was invalidated due to the court’s correction by the Board of Audit and Inspection).

[Attachment]

Judges Choi Jong-ho (Presiding Judge) Kim Tae-ho