2011Guhap42154 Confirmation, etc. of illegality of omission

A

1. The Chairman of the Board;

2. Financial Supervisory Service Governor;

3. The Minister of Education, Science

4. The Minister of Public Administration;

June 28, 2012

July 12, 2012

1. All of the plaintiff's main and ancillary claims against the defendants shall be dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

First, it is confirmed that the omission by the Defendants against each of the complaints filed by the Plaintiff is unlawful. Preliminaryly, it is confirmed that the refusal disposition by the Defendants against each of the complaints filed by the Plaintiff is invalid.

1. Basic facts

A. Filing a civil petition against the Commissioner of the Board of Audit and Inspection

(1) On December 18, 2009, the plaintiff filed a civil petition with the Chairman of the Supreme Court of Korea stating that "the plaintiff worked in the former B from November 1, 1994 to March 27, 1995. C requested money and valuables to the plaintiff but threatened the plaintiff to be dismissed, and the plaintiff filed a petition for unfair dismissal to the Labor Relations Commission, and the plaintiff was treated as non-conformity. The D representative director E and three employees of the new bank and one other employees of the new bank would be harmful to the plaintiff."

(2) On December 22, 2009, the employee of the Board of Audit and Inspection notified the Plaintiff of the content that “it is difficult for the Board of Audit and Inspection to treat the civil petition as a civil petition because it concerns disputes between private persons and thus it is difficult for the Board of Audit and Inspection to treat the civil petition as a civil petition, and it may be relieved by the Labor Relations Commission’s decision and lawsuit.”

(3) On the other hand, on July 5, 2010, the Plaintiff filed a civil petition with the Chairman of the Board of Audit and Inspection of the Defendant, stating that “The Plaintiff’s petition filed in relation to the case of assault against and harming a customer group committed by the Chairman of the Board of Audit and Inspection of the Korea Federation of the Bank is silent at the Financial Supervisory Service and the relevant bank. Therefore, the Plaintiff filed a civil petition with the Chairman of the Board of Audit and Inspection of the Financial Supervisory Service

(4) On July 9, 2010, the employee of the Board of Audit and Inspection confirmed the Plaintiff’s civil petition filing facts and assertion by wire with the Financial Supervisory Service, and notified the Plaintiff of the content that “the Plaintiff’s civil petition on July 5, 2010, which ought to be assisted by the judicial authority, cannot be treated as a civil petition by the Board of Audit and Inspection, and thus, should be treated as a civil petition by the said Board of Audit and Inspection.”

B. Plaintiff’s civil petition against Defendant Governor

(1) On February 2, 2010, the Plaintiff filed a civil petition with the Governor of the Financial Supervisory Service (hereinafter “the Governor of the Financial Supervisory Service”) having similar contents on nine occasions in total from December 2, 2009 to January 14, 2012, including filing a civil petition “a request to take measures, such as spreading false facts, genocide, defamation, etc., in collusion with the employees of the Korea Financial Supervisory Service, etc. of the Financial Supervisory Service.”

(2) As to the civil petition from 1 to 4 times, the employee of the Daejeon branch office of the Daejeon Branch of the Financial Supervisory Service responded to the Plaintiff: (a) “A criminal case, such as dissemination of false facts, group assault, defamation, etc., should be resolved by requesting an investigation to the judicial authorities, such as the police with the authority of compulsory investigation, the prosecution, etc.; and (b) our Won informed him/her of this point that he/she cannot help.” (c) with respect to civil petition from 5 to 7 times, it constitutes a case where he/she repeatedly files a civil petition at least three times without any special reason and notifies him/her of the processing results at least twice, so it constitutes a case where he/she repeatedly files a civil petition without a separate response pursuant to Article 30 of the Regulations on Civil Petitions Treatment of the Financial Supervisory Service, and (c) eight and nine times civil petition reports are submitted by us to the new bank by investigating the content of the civil petition and answer to the notification of the result of treatment to the public agency.”

C. Plaintiff’s civil petition against Defendant Minister of Public Administration and Security

(1) On October 17:34, 2010, the Plaintiff conspireds the Plaintiff by spreading false facts, such as the fact that the Plaintiff is drinking and drinking, and that the Plaintiff was not a member of the online citizen participant portal operated by the Anti-Corruption and Civil Rights Commission, and, despite the fact that the Plaintiff was the victim, the G crime prevention commander (the head of the Dong) took advantage of his position such as I, G police box chief, J, K, L, and the general manager M, etc., of the Chuncheon Police Station Investigation Division of the Chuncheon Police Station, thereby inducing the Plaintiff to drive in the crime prevention team by manipulatinging the Plaintiff as the perpetrator of the case, and aided the Plaintiff to drive in the crime prevention team. The NF made a request for a new civil petition by taking advantage of his position in P, Q, etc., and by aiding and abetting the Plaintiff to receive more agricultural funds from the back and return the same to the residents of the Eup Police Station, and then by aiding and abetting the residents of the Eup.

(2) On October 13, 2010, the Defendant requested the Anti-Corruption and Civil Rights Commission to review the Plaintiff’s civil petition as of October 10, 2010 on the ground that the civil petition does not belong to the Defendant’s business. The Anti-Corruption and Civil Rights Commission designated the agency as the National Police Agency. The National Police Agency received the Plaintiff’s civil petition as of October 12, 2010 from the National Police Agency around October 14, 2010.

[Ground of recognition] Facts without dispute, Eul's evidence 1 to 3, Eul's evidence 1 to 1, 2, Eul's evidence 1, and the purport of the whole pleadings

2. Judgment on the main defense of this case

A. Main Safety Defenses of the Defendants

(1) (1) The Plaintiff’s petition filed by the Plaintiff on January 2, 2009 and July 5, 2010 in the case of the Chairman of the Board of Audit and Inspection of the Republic of Korea, as to the civil petition filed by the Plaintiff on February 2, 2010 in the case of the Defendant Governor of the Financial Supervisory Service:

(3) In the case of Defendant Minister of Education, Science and Technology, the Plaintiff filed a civil petition on September 23, 2010. (4) In the case of Defendant Minister of Public Administration and Security, the Plaintiff did not take any measures against the civil petition filed on October 12, 2010, and sought confirmation of the illegality of the omission and confirmation of the invalidity of the preliminary refusal disposition against the Defendants.

As to this, the Defendants asserted to the effect that the part of the Plaintiff’s main claim in the instant lawsuit is unlawful since the omission by an administrative agency, which can be the subject of an appeal litigation, is not recognized or standing to sue is not recognized. The conjunctive claim is not subject to an administrative disposition, and thus, is not subject

B. Determination

(1) Judgment on the main claim

A lawsuit for confirmation of illegality of omission under Article 4 subparagraph 3 of the Administrative Litigation Act is a system for the purpose of removing a passive state of omission or non-compliance through prompt response of an administrative agency by confirming that the omission is illegal if an administrative agency fails to comply with a legal obligation to respond to such passive disposition, such as accepting, rejecting, or dismissing an application based on a party’s legal or sound right within a reasonable period of time. Such a lawsuit can be brought only by a person who has filed a request for a disposition and has legal interest in seeking confirmation of illegality of omission. The response of an administrative agency to seek such response must be related to a disposition under Article 2 (1) 1 of the Administrative Litigation Act. Thus, even if a party fails to file an application with an administrative agency for an administrative action, even if the party does not have legal or logical right to demand the administrative agency to perform such administrative action, it cannot be deemed that there is no standing to sue or an illegal omission subject to an appeal litigation (see Supreme Court Decision 93Nu979, Apr. 29, 1993).

However, there is no evidence to deem that the Plaintiff filed a civil petition against the Defendant, the Minister of Education, Science and Technology on September 23, 2010, and the Chairman of the Board of Audit and Inspection, the Governor of the Financial Supervisory Service, and the Minister of the Interior and Safety were to reply to the Plaintiff’s civil petition. As seen earlier, the omission by the Defendants in relation to the Plaintiff’s civil petition cannot be deemed to exist (in the case of the Minister of Education, Science and Technology of the Plaintiff, since it is not recognized that the Plaintiff filed a civil petition on September 23, 201

In addition, there is no ground to deem that the right to file an application under the law or the cooking that the Plaintiff may request the Defendants to investigate and dispose of the complaints they filed, and it is difficult to deem that the Defendants, as well, have the authority to investigate the complaints filed by the Plaintiff and order necessary measures or bear their obligations.

Therefore, the lawsuit of this case is unlawful because there is no illegal omission, which is the object of the appeal litigation, or the standing to sue is not recognized. The defendants' defense has merit.

(2) Determination on the conjunctive claim

In order for an administrative agency to become the subject of an administrative disposition against which a citizen's rejection of an application filed by a citizen becomes the subject of an appeal litigation, there must be rights under laws or sound reasoning that allow citizens to request an administrative agency to perform an administrative act according to the relevant application. In addition, a disposition that is the subject of an appeal litigation refers to an act under public law of an administrative agency, such as ordering the establishment of a right or the burden of an obligation with respect to a specific matter, or causing other legal effects, which is directly related to the rights and obligations of the people. An act that does not cause direct legal change in the legal status of the other party or other interested parties, cannot be a disposition that is the subject of an appeal litigation. Thus, even if an administrative agency rejected an application for a request for a right under laws and regulations or sound reasoning, if the administrative agency did not affect the applicant's rights and obligations or legal relations, then the declaration of rejection made by an administrative agency cannot be a disposition of rejection that is the subject of an appeal litigation (see Supreme Court Decision 96Nu

On September 23, 2010, there is no evidence to deem that the Plaintiff filed a civil petition with the Minister of Education, Science and Technology on September 23, 2010, and as seen earlier, the Plaintiff’s right to file a civil petition is recognized under the law or sound reasoning that the Plaintiff may request the Defendants to investigate and dispose of the civil petition filed by him/her. The Defendants also have the authority to investigate the matters filed by the Plaintiff and order necessary measures, or bear their obligations. The Plaintiff’s civil petition is a dispute over the private legal relationship, and it does not seem to be a matter that can be resolved through the Plaintiff’s civil petition filing against the Defendants, regardless of the fact that the Plaintiff can be resolved through an investigation agency or judicial agency. In light of the above, even if the Defendants failed to take a measure in accordance with the Plaintiff’s civil petition, it cannot be said that there is no legal effect or legal uncertainty that may cause a direct change in the Plaintiff’s rights

Therefore, the Plaintiff’s lawsuit of the instant conjunctive claim is unlawful as it refers to the Plaintiff’s lawsuit that is not subject to appeal litigation. The Defendants’ defense is with merit.

3. Conclusion

Therefore, since the plaintiff's primary claim and conjunctive claim against the defendants are all unlawful, it is so decided as per Disposition by the assent of all.

Chief Judge Park Tae-tae

decoration of Judge Merit;

Judge Cham Name