Whether the revocation of the revocation of the administrative act may be revoked

In the event that there is a clear provision that the disposition of revocation of an administrative act (tax disposition) is null and void as it is significant and obvious, or that there is a clear provision that can be challenged as a lawsuit or administrative litigation against the disposition of revocation, it is not possible to bring a lawsuit against an administrative act which has already lost its validity due to the cancellation of the disposition of revocation of the administrative act, and so, it is inevitable to resume the administrative act of the same content

Article 1 of the Administrative Litigation Act

[Judgment of the court below]

Head of the Office of Government

Seoul High Court Decision 76Gu386 delivered on February 23, 1977

The appeal is dismissed.

The costs of appeal shall be borne by the defendant.

The grounds of appeal by the defendant litigant are examined.

After the cancellation of a disposition of cancellation, the issue of whether the original administrative act can be recovered by cancelling the disposition of cancellation on the ground of its own illegality can be considered in two cases. One is significant and clear, so that the disposition of cancellation is absolutely null and void due to its illegality, in this case, it would be possible to cancel it as a declaration of invalidation in respect of the disposition of cancellation. The other is a simple illegality, not where the disposition of cancellation is absolutely null and void. In this case, when the law permits the filing of a lawsuit or an administrative litigation on the disposition of cancellation, it shall be resolved according to the procedure. If there is no express provision on the cancellation of the disposition of cancellation in law, the disposition of cancellation shall be effective, even if it is illegal, and therefore, it shall become null and void, so it shall not be possible to bring an administrative action that has already been invalidated by the cancellation of the disposition of cancellation, and it shall be reasonable to clear that the original administrative act cannot be done with the same content as the original administrative act.

In light of this case, the defendant, as of August 19, 1975, imposed on the plaintiff significant taxes and defense taxes on the actual results which the plaintiff manufactured and sold a model light device manufactured and sold by the plaintiff in July 19, 1975. The plaintiff filed a petition for examination to the Commissioner of the National Tax Service for the illegality of such taxation, while the Commissioner of the National Tax Service notified the plaintiff that he would process the petition by the previous decision (the Commissioner of the National Tax Service revoked the disposition of imposition of other tax on the original payment period). The defendant revoked the disposition of revocation on September 13, 1975, the above disposition of revocation on August 19, 1975. Accordingly, the Commissioner of the National Tax Service had already revoked the disposition of revocation on the ground that the above disposition of revocation was not an unlawful disposition of revocation on the ground that it was not an unlawful disposition of revocation on the original decision of revocation on the ground that it was not an unlawful disposition of revocation on the original decision of revocation on the ground that it was not an unlawful disposition of revocation on the original judgment of revocation 171.

Therefore, the disposition of restoration (re-cancellation of the disposition revoking the disposition of this case) is obvious to be unlawful in light of the above theory, and therefore, the judgment of the court below that revoked the disposition of restoration of this case on the same purport is just, and there is no error of law by mistake in the reasoning like the theory of lawsuit or legal interpretation, and there is no violation of universality or fairness that might affect the judgment of the court below.

The issue is groundless.

Therefore, the appeal is 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.

Justices Yu Tae-hee (Presiding Justice)

Since the number of Justices Ahn Byung-soo is during business trip, it is impossible to sign and seal.