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(영문) 대법원 2016. 10. 27. 선고 2016두44766 판결
소송계속중 피고가 처분을 직권취소한 경우, 소의 이익이 없어 부적법하므로 각하[국승]
Case Number of the immediately preceding lawsuit

Seoul High Court-2015-Nu64307 (Law No. 17, 2016)

Title

In the event that the defendant revoked the disposition ex officio during the proceeding of the lawsuit, it is illegal as there is no interest in the lawsuit.

Summary

If an administrative litigation is revoked, the disposition loses its validity and does not exist any longer, so a revocation lawsuit against a non-existent administrative disposition is illegal as there is no interest in the lawsuit.

Related statutes

Article 11 of the Framework Act on National Taxes

Cases

2016du44766 global income and revocation of such disposition.

Plaintiff-Appellant

MaO

Defendant-Appellee

AA Head of the Tax Office

Judgment of the lower court

Seoul High Court Decision 2015Nu64307 Decided June 17, 2016

Imposition of Judgment

October 27, 2016

Text

The judgment of the court below is reversed.

The judgment of the first instance shall be revoked, and the lawsuit of this case shall be dismissed.

All costs of the lawsuit shall be borne by the defendant.

Reasons

The grounds of appeal are examined.

When an administrative disposition is revoked, such disposition shall lose its validity and no longer exists, and a revocation lawsuit against a non-existent administrative disposition is unlawful as there is no benefit of lawsuit (see, e.g., Supreme Court Decision 2012Du18202, Dec. 13, 2012).

According to the records, the defendant can know the fact that he revoked the disposition of this case ex officio on May 25, 2016, which is pending in the court below, and thus, the lawsuit of this case is already extinguished and the lawsuit of this case is seeking revocation of the disposition without any legal interest, and thus,

Therefore, the judgment of the court below shall be reversed, and since this case is sufficient for the court to directly judge, the judgment of the court of first instance shall be revoked, and the lawsuit of this case shall be dismissed, and the total cost of the lawsuit shall be borne by the defendant pursuant to Article 32 of the Administrative Litigation Act. It is so decided as per Disposition by the assent

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