Whether a means of attack and defense not asserted in a prior trial procedure may be asserted in a litigation procedure in an appeal litigation (affirmative)

In an appeal litigation, the Plaintiff may assert the method of attack and defense that was not asserted in the previous trial procedure in the litigation procedure, and the court may deliberate and determine the legitimacy of administrative disposition. Thus, the Plaintiff’s new assertion of the illegality of disposition that was not asserted in the previous trial procedure in the litigation procedure does not require a separate prior trial procedure as to the disposition.

Article 18 of the Administrative Litigation Act

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

Tae Construction Co., Ltd. (Attorney Lee Jae-young, Counsel for the defendant-appellant)

(Attorney Jeon-young, Counsel for defendant-appellee)

Seoul High Court Decision 94Gu5146 delivered on November 28, 1995

The appeal is dismissed. The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

1. On the first ground for appeal

In an appeal litigation, the plaintiff may assert the method of offence and defense that was not asserted in the previous trial procedure in the litigation procedure, and the court may examine it to determine the legitimacy of administrative disposition (see Supreme Court Decision 86Nu136, May 26, 1987). Thus, it is not necessary to go through a separate prior trial procedure against the disposition on the ground that the plaintiff newly asserted the grounds for illegality of the disposition that was not asserted in the previous trial procedure in the previous trial procedure.

In this regard, the court below is just in holding that the court below erred in the failure to go through the procedure of the prior trial on the lawsuit of this case, and the plaintiff asserted for the first time in the lawsuit of this case, that the land price at the time of commencement of the development project of this case was not calculated based on the actual purchase price, and there is no error in the misapprehension of the legal principles as to the procedure of the prior trial. The argument is without merit.

2. On the second ground for appeal

In light of the records and relevant Acts and subordinate statutes, the decision of the court below that recognized the actual purchase price of the land subject to the imposition of this case as the amount stated in its decision and decided that the land price at the time of commencement was no development gains as a result of re-determination of the land price, etc. shall be justified, and there is no error of law of mistake

3. Therefore, the appeal is dismissed, and all 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 Ahn Yong-sik (Presiding Justice)