Plaintiff (Attorney Go Il-young, Counsel for the plaintiff-appellant)

Korea Land and Housing Corporation and one other (Law Firm Erasing, Attorney Choi Sung-soo, Counsel for the plaintiff-appellant)

October 25, 2019

1. The part of the lawsuit in this case against the defendant Korea Land and Housing Corporation shall be dismissed.

2. The plaintiff's request against the Central Administrative Appeals Commission is dismissed.

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

The disposition that Defendant Korea Land and Housing Corporation excluded the Plaintiff from the person subject to relocation measures on December 6, 2017 shall be revoked. The decision of rejection of an administrative appeal made by Defendant Central Administrative Appeals Commission against Plaintiff on October 17, 2018 shall be revoked.

1. Basic facts

A. The Defendant Korea Land and Housing Corporation (hereinafter “Defendant Corporation”) is the project implementer of the Incheon Inspection District Housing Site Development Project (hereinafter “instant project”), which was publicly announced on October 27, 2006 by the public inspection of the designation of the planned housing site development district, and the Nonparty, the Plaintiff’s her dynamics, completed the registration of ownership transfer on November 6, 2009 with respect to the 42.31 square meters of housing of 1st floor (hereinafter “instant housing”) in Seo-gu, Incheon Metropolitan City ( Address omitted) located in the instant project district, and the registration of ownership transfer from the Nonparty on the same day on November 6, 2009.

B. Around December 2016, the Defendant Corporation established and publicly announced the relocation measures for the instant project. Of the relocation measures, the requirements for a person subject to supply of a resettled housing site (self-owned housing site) among the relocation measures were determined as “a person who has continuously owned and continuously resided in the housing district in the project district since one year prior to the date of the public announcement of the designation of the housing site development area ( October 27, 2006) by the date of the public announcement of the designation of the housing site development area or the date of the adjudication of expropriation, and who has resided in the housing due to the implementation of the project upon receiving compensation from the Defendant Corporation: Provided, That the owner of an unauthorized building, corporation

C. On March 29, 2017, the Plaintiff filed an application with Defendant Corporation for the selection of a person eligible for supply of a resettled housing site. In the 1970s, the Plaintiff filed an application with the purport of applying for a resettled housing site by attaching evidentiary documents, such as a building ledger, a certificate of confirmation by neighboring residents, a certificate of confirmation by neighboring users, a certificate of use of electricity, a certificate of registration of transfer and acquisition prepared by the Nonparty.

D. On July 28, 2017, the Defendant Corporation notified the Plaintiff of the exclusion from the relocation measures (hereinafter “the first notification”) on the ground that the Plaintiff acquired the instant housing after the base date, and stated that, if there is an objection to the decision, the Defendant Corporation may file an objection in writing with the Defendant Corporation along with evidentiary materials within 30 days from the date of receipt of the notification, and also may file an administrative appeal or administrative litigation within 90 days from the date of receipt of the notification.

E. On August 25, 2017, the Plaintiff filed an objection with the Defendant Corporation to the effect that registration of preservation of ownership in the name of the Nonparty was erroneous on the registry by stating that the ownership of the instant house was erroneously owned by the Nonparty on the building registry. Since the Plaintiff directly constructed and continuously resided in the instant house, the Plaintiff filed an objection with the purport that he/she is the true owner. The written objection accompanied by additional documentary evidence, such as a written confirmation of acceptance, a document of investigation of obstacles at the time of 1972, a document of fact confirmation of the Nonparty’s name.

F. On December 6, 2017, the Defendant Corporation notified the Plaintiff of the result of the examination of an objection to the relocation measures that “the previous owner cannot be recognized based on the determination of the fact,” stating that “the Plaintiff shall not be subject to the relocation measures” (hereinafter “the second notification”). Meanwhile, the written notification states that “In the event there is an objection again against the non-acceptance of the Plaintiff’s objection, the Defendant Corporation may file an administrative appeal or administrative litigation within 90 days from the date of receipt of the notification of the instant disposition in accordance with the Administrative Litigation Act.”

G. On March 5, 2018, the Plaintiff asserted that he/she falls under a person subject to supply of a resettled housing site and filed an administrative appeal seeking revocation of the second notification, and the Defendant Central Administrative Appeals Commission (hereinafter “Defendant Committee”) dismissed the appeal on October 17, 2018 on the ground that the second notification does not constitute a disposition, and the written judgment was served on the Plaintiff on October 31, 2018.

[Ground of recognition] Unsatisfy, Gap evidence 1 through 5 (including branch numbers in case of additional number), Eul evidence 1 to 3, Eul evidence 1, and the purport of the whole pleadings

2. Whether the part of the instant lawsuit against the Defendant Corporation regarding the claim is lawful

The plaintiff asserts that the second notification of the defendant Corporation may be deemed a new disposition different from the second notification, and filed a claim against the defendant Corporation for the revocation of the second notification, and this will be examined ex officio as to whether it is legitimate.

An administrative disposition, which is the object of an appeal litigation, refers to an act of an administrative agency’s public law that directly affects the rights and obligations of the people by ordering the establishment of rights or the burden of obligations under Acts and subordinate statutes with respect to a specific matter, or giving rise to other legal effects, and an act that does not directly affect the legal status of the other party or other related persons is not an administrative disposition that is the object of an appeal litigation (see, e.g., Supreme Court Decision 2007Du10198, Nov. 15,

Meanwhile, unlike the administrative appeal procedure, which is the procedure for allowing a separate administrative agency to appeal against the administrative agency for the purpose of remedying the rights or interests of the people infringed upon by illegal or unjust disposition or omission of the administrative agency (hereinafter “civil petition”) under Article 35(1) of the Civil Petitions Treatment Act, the procedure is that the administrative agency, which has rejected the civil petition under the same Act, re-examines the civil petitioner’s application and makes it correct. Accordingly, in the case of the civil petition, a new disposition should be taken without revoking the rejection disposition subject to the civil petition, but if the civil petition is filed, a new disposition should be taken without revoking the rejection disposition subject to the civil petition. However, in the case of the rejection of the petition, a new disposition should be made without making the rejection disposition again, and the result should be notified. Accordingly, it is merely based on the premise that the previous rejection disposition is maintained, and it does not affect the administrative appeal or administrative litigation against the rejection disposition. Accordingly, it is reasonable to deem that the new change in the rights and duties of the civil petition, or any similar administrative action, cannot be subject to an independent appeal litigation (see Supreme Court Decision 2016Du16.

Around August 25, 2017, the Plaintiff’s written objection submitted to the Defendant Corporation was submitted by the Corporation to inform the Plaintiff that it may file an objection in writing within 30 days if the Plaintiff did not meet the requirements for eligibility for eligibility for eligibility for eligibility for eligibility for eligibility for eligibility for eligibility for eligibility for eligibility for eligibility for eligibility for eligibility for eligibility for eligibility for eligibility for eligibility for housing site. The first notification made by the Plaintiff, even though the Plaintiff failed to meet the requirements for eligibility for eligibility for eligibility for eligibility for eligibility for housing site supply, was erroneous, and the first notification made by the Plaintiff did not meet the requirements for eligibility for eligibility for eligibility for eligibility for eligibility for eligibility for eligibility for housing site supply. Therefore, in light of the form, content, submission process, etc., the Plaintiff’s initial application for eligibility for eligibility for eligibility for eligibility for eligibility for eligibility for eligibility for eligibility for eligibility for eligibility for eligibility for eligibility for housing site supply, it is difficult to view that the Plaintiff’s initial application for eligibility for eligibility for eligibility for eligibility for eligibility for eligibility for eligibility for eligibility for eligibility for housing site supply is a new application for eligibility for notification.

Therefore, the part concerning the claim against the defendant corporation among the lawsuit in this case is unlawful due to its lack of eligibility.

3. Determination as to the plaintiff's claim against the defendant committee

A. The plaintiff's assertion

Although the second notification of Defendant Corporation constitutes a new disposition separate from the first notification, the Defendant Committee rejected the Plaintiff’s legitimate request for administrative appeal by the instant ruling, thereby infringing on the Plaintiff’s right to substantive examination. This constitutes a case of illegality inherent in the adjudication itself, and the instant decision should be revoked.

B. Determination

Article 19 of the Administrative Litigation Act provides that a litigation for revocation shall be subject to the original disposition of an administrative agency (the original disposition principle): Provided, That only in the case of "where the adjudication itself is based on an inherent error in the adjudication itself, the adjudication for administrative appeal shall also be subject to the litigation for revocation. Therefore, in the case of a litigation for revocation of adjudication, whether the adjudication itself has an inherent error or not, and in the case of absence of an inherent error in the adjudication itself, the litigation for revocation of the adjudication shall be dismissed regardless of the legitimacy of the original disposition (see Supreme Court Decision 93Nu16901 delivered on January 25,

Meanwhile, according to Article 19 of the Administrative Litigation Act, in a case where an adjudication on an administrative appeal is made on the ground that the adjudication itself has an inherent illegality, the adjudication itself can file an appeal suit and seek its revocation, and "the adjudication itself" refers to a case where there is an error of law in the subject, procedure, form, or content in the adjudication itself. Although a request for administrative appeal is not illegal, the adjudication dismissed is deprived of a claimant's right to undergo an examination on the substance of the claimant, and it constitutes an inherent error that does not exist in the original disposition. In such a case, the adjudication is subject to revocation litigation (see Supreme Court Decision 9Du2970 delivered on July 27, 20

In light of the above legal principles, the fact that the second notification by Defendant Corporation and the second notification by Defendant Corporation cannot be viewed as an administrative disposition separate from the first notification, which is subject to appeal litigation, is unlawful. Therefore, the Plaintiff’s claim for administrative appeal is unlawful.

Therefore, it cannot be deemed that there is an inherent violation of the adjudication itself which deprived of the claimant's right to receive substantive examination, which is the decision of the defendant committee of this case. Therefore, this part of the plaintiff'

4. Conclusion

Therefore, the part of the lawsuit of this case against Defendant Corporation is unlawful and dismissed. The plaintiff's claim against Defendant Corporation is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Jong-young (Presiding Judge) No. 5