(영문) 서울행정법원 2009.5.21.선고 2009구합3279 판결

On September 17, 2008, the Plaintiff received the National Assembly by introducing ○○○ and one other member of the National Assembly on September 17, 2008 “Petitions relating to ○○○” to confirm that the Defendant’s omission, which did not make a decision within 90 days, was illegal, pursuant to Article 26(2) of the Constitution and Article 7(2) of the National Assembly Petition Review Regulations.

Reasons

1. Basic facts

The following facts may be acknowledged either in dispute between the parties or in full view of the descriptions of Gap evidence 6, 8, 10-2 through 9, Gap evidence 11-1 through 3, Gap evidence 12-3, 4, Gap evidence 13-1 through 24, Gap evidence 14-1 through 21, Eul evidence 14-1, 14-2, and 2, and the whole purport of pleadings:

A. The Plaintiff is an organization established for the purpose of raising citizens' awareness about the prevention of corruption.

B. On February 26, 1991, ○○○○○, a representative director of the Plaintiff’s Standing ○○○○, (hereinafter “○○○○○”) had been an OO’s representative director, the Plaintiff’s bill issued by the OO, was in default, despite the deposit that OO could have been freely withdrawn and used from ○○○○ branch of ○○○○ Bank on February 26, 1991 (the name of ○○○○○) and led to a result that the factory was reconstructed by the disposition of suspending transactions on the following day.

C. On September 17, 2008, the plaintiff introduced the member of the National Assembly ○○ and one other. The Financial Supervisory Service did not take corrective measures or accusation against the refusal to return illegal deposits and the disposition of suspension of transactions with the above ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○

D. On September 19, 2008, the Speaker of the National Assembly submitted the petition of this case to the National Assembly Secretariat, which is the competent committee, under Article 124(1) of the National Assembly Act. The Speaker of the National Assembly did not complete the examination within 90 days on the petition of this case and requested the Speaker of the National Assembly to make an interim report under Article 7(2) of the Rule on the Examination of the National Assembly Petition and to extend the examination period on December 29, 2008. The review period was extended by the Speaker of the National Assembly from January 5, 2009 to March 19, 2009, and the review period was extended once in accordance with the same procedure on March 3, 2009.

E. Meanwhile, although the Plaintiff submitted the same petition to the National Assembly of the 15th, 16th and 17th National Assembly, the extension of the examination period has not been dealt with during the term of each National Assembly member, and the proviso to Article 51 of the Constitution has not been abolished on the expiration date of each National Assembly member's term.

2. The plaintiff's assertion

The defendant's continued abandonment of the examination and resolution on the petition of this case received by the plaintiff as of September 17, 2008 without forming a subcommittee for the examination of the petition even though 90 days of the review period set under Article 7 (2) of the National Assembly Rules for the examination of the petition of this case had passed, the defendant's continued abandonment of the examination and resolution on the petition of this case without forming a subcommittee for the examination of the petition of this case shall not only infringe the plaintiff's right to receive relief but also be deemed a legislative civil petition for the public, and therefore, it shall not be deemed a legislative civil petition

3. Relevant provisions.

[Korean Constitution]

Article 26 (Right to Petition)

(1) All citizens shall have the right to petition in writing to the State agencies under the conditions as prescribed by Acts.

(2) The State shall have an obligation to examine petitions.

【Petition Act】

Article 9 (Examination of Petitions)

(1) An agency which has accepted a petition shall examine and treat the petition in a sincere and fair manner.

(2) When an agency in charge of petition receives a petition, it shall notify the petitioner of the decision to process the petition within 90 days, except in extenuating circumstances.

【National Assembly Petition Review Regulations】

Article 7 (Reference of Petitions)

(1) The Speaker shall refer the petition to the competent committee when he/she receives a petition.

(2) The Committee shall report the results of an examination to the Speaker within 90 days from the date of referral to the petition, except in extenuating circumstances, and if the examination has not been completed within this period, it may make an interim report to the Speaker and request an extension of the examination period

4. Whether the instant lawsuit is lawful

A lawsuit for confirmation of illegality of omission under Article 4 subparagraph 3 of the Administrative Litigation Act is a system that aims at providing a passive state of illegality, such as an active disposition accepting, rejecting, or rejecting an application based on a party’s legal or sound right within a reasonable period of time, in a case where an administrative agency fails to comply with a legal obligation to respond to such passive disposition, such as accepting, rejecting, or rejecting, etc. an application based on the party’s legal or sound right. Such a lawsuit is filed only by a person who has filed the application for a disposition and has a legal interest in seeking confirmation of illegality of omission. Thus, where a party does not have a legal or sound right to request an administrative agency to take any administrative disposition or there is no legal interest in seeking confirmation of illegality of omission, the lawsuit for confirmation of illegality of omission is unlawful (see Supreme Court Decision 9Du1545 delivered on February 25, 200, 195Du145555 delivered on February 25, 200).

Meanwhile, the right to petition under Article 26(1) of the Constitution is merely a right to state an opinion or desire on a certain matter to the State agency and to urge the State agency to take a prior action against the matter. Thus, even if the agency in charge of the petition under Article 9(2) of the Petition Act has a duty to notify the petitioner of the review and settlement decision, the agency in charge of the petition shall not be obliged to faithfully, fairly, promptly review and handle the petition and notify the petitioner of the result. Accordingly, the issue of whether a State agency accepted the petition and takes a physical measure is subject to the discretion of the State agency, and thus, it does not affect the petitioner’s rights and duties, and other legal relations (see Supreme Court Decision 90Du1458 delivered on May 25, 190).

As seen earlier, the Plaintiff submitted the petition of this case to the National Assembly on September 17, 2008. The Speaker of the National Assembly accepted it and referred it to the National Assembly to review it as a person on September 19, 2008, and notified the Plaintiff. The committee now under review. Thus, even if the National Assembly did not complete the review within a considerable period of time, it cannot be said that there is an unlawful omission subject to appeal litigation. Furthermore, Article 9(2) of the Petition Rule provides that the time limit for handling the petition may be extended only once by prescribing the time limit of 90 days, and Article 7(2) of the National Assembly Petition Rule provides that the time limit for review of the petition of this case may be extended through the National Assembly approval procedure, and the right to request the Plaintiff to review the petition of this case cannot be deemed to have been granted to the Plaintiff within a certain period of time due to the Plaintiff’s lack of specific right to request the Plaintiff to review the petition within a certain period of time under the National Assembly’s statutory review procedure.

3. Conclusion

Thus, since the plaintiff's lawsuit of this case is unlawful, it is decided to dismiss it, and it is decided as per Disposition.