[1] The meaning of "identical case" under Article 18 (3) 1 of the former Administrative Litigation Act

[2] The method of handling an unclear written request for an administrative appeal, if any, or its purport is unclear

[3] The case holding that a written submission of the title "written petition" can be seen as an administrative appeal

[1] The term "where there is a ruling of rejection of an administrative appeal" under Article 18 (3) 1 of the former Administrative Litigation Act (amended by Act No. 4770 of July 27, 1994) refers to the case in which homogeneity is recognized in that not only the case in question but also the case in question.

[2] In light of the purport of Articles 19 and 23 of the Administrative Appeals Act and the purpose of the administrative appeals system, a request for administrative appeal, which is a requirement for the transfer of administrative litigation, shall be interpreted as a written act that does not require strict form. Thus, when a document seeking the cancellation or modification of a disposition is submitted from a person whose right or interest has been infringed due to an illegal and unfair administrative disposition, such document shall be deemed as an administrative appeal request under Article 18 of the Administrative Litigation Act regardless of the title and the submission agency, and when it is possible to correct the defective matter, the correction shall be ordered, and when the correction is impossible or non-compliance with the order of correction, the correction shall be dismissed illegal. Furthermore, even if the claimant does not have general legal knowledge and the purport of the document submitted is unclear, it shall be interpreted and treated as an administrative agency

[3] The case holding that although the title of the administrative appeal is "written petition" and the matters stipulated in Article 19 (2) of the Administrative Appeals Act, such as the indication of the ruling authority, the purport and reason for the appeal, the existence of the notification of the administrative agency which made the disposition, and the contents thereof, are not separately stated, it cannot be deemed that the form of the administrative appeal application is in full. However, it is not sufficient to regard the above document as an administrative appeal application in the case where the disposition authority as the respondent and the petitioner are stated, and the petitioner's name and address are written, and the petitioner's name and address are stated, and it is possible to know the contents of the administrative disposition which is the object of the appeal, the purport and reason for the appeal, and the date when the disposition is known by the contents of the document, it is possible to correct that the above document

[1] Article 18 (3) 1 of the former Administrative Litigation Act (amended by Act No. 4770 of July 27, 1994) / [2] Articles 17, 19, and 23 of the Administrative Appeals Act, Article 18 of the Administrative Litigation Act / [3] Articles 17, 19, and 23 of the Administrative Appeals Act, Article 18 of the Administrative Litigation Act

[1] Supreme Court Decision 92Nu8972 delivered on November 24, 1992 (Gong1993Sang, 276), Supreme Court Decision 93Nu9132 delivered on September 28, 1993 (Gong1993Ha, 2984), Supreme Court Decision 94Nu4653 delivered on November 8, 1994 (Gong1994Ha, 3292) / [2] Supreme Court Decision 92Nu19194 delivered on June 29, 1993 (Gong193Ha, 216), Supreme Court Decision 94Nu16250 delivered on September 5, 199 (Gong195Ha, 3410), Supreme Court Decision 29Nu97299 delivered on November 29, 195 (Gong297Du19794 delivered on September 29, 197).

Plaintiff (Attorney Choi Yong-sung, Counsel for the plaintiff-appellant)

Ansan-si (Law Firm Ansan-si et al., Counsel for the plaintiff-appellant-appellee)

Seoul High Court Decision 97Gu20665 delivered on December 17, 1997

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. On the first ground for appeal

Article 18 (3) 1 of the former Administrative Litigation Act (amended by Act No. 4770 of Jul. 27, 1994) provides that "where an administrative appeal may be filed without filing an administrative appeal, the case of the same kind" refers to not only the case but also the case where homogeneity is recognized in the basic point of view (see, e.g., Supreme Court Decisions 92Nu8972, Nov. 24, 1992; 93Nu9132, Sept. 28, 1993).

According to the records, there is no common aspect in that the provisional disposition of building permission against the non-party and the disposition of this case were rendered on the same day by the defendant, who is the same administrative agency, but on the other hand, the application for building permission of the non-party subject to the disposition and the application for building permission of this case by the plaintiff are completely different from the place of application, the land category of the application, the size of the building to be constructed, the purpose of use, and the structure of the building

In the same purport, the decision of the court below that the above two cases do not fall under the same kind of case as provided by Article 18 (3) 1 of the former Administrative Litigation Act shall be justified, and there is no violation of law as pointed out.

The grounds of appeal on this point cannot be accepted.

2. On the second ground for appeal

According to the reasoning of the judgment below, the court below notified the defendant of the disposition of this case on October 25, 1995 and delivered the notice stating the reasons and contents of the disposition of this case to the plaintiff's address indicated in the construction permission application of this case, but the notice was impossible to be served because his address was unknown. The plaintiff was not notified of the disposition of this case and received the document requesting prompt treatment of this case's construction permission application of this case on April 11, 1997. The defendant notified the plaintiff as of October 25, 1995 and received the lawsuit of this case on or around April 19, 197. The plaintiff notified the plaintiff's rejection of the application of this case's construction permission of this case as of April 29, 197, and the plaintiff did not request the plaintiff to submit the document of this case to the plaintiff's address and contact number, etc. of this case as of October 25, 195, but it did not request the plaintiff to correct the plaintiff's notification of the above disposition of this case to the plaintiff's address.

However, in light of the purport of Articles 19 and 23 of the Administrative Appeals Act and the purpose of the administrative appeals system, a request for administrative appeal, which is a requirement for the transfer of administrative litigation, is interpreted as a written act that does not require strict form. Thus, when a document seeking cancellation or change of the disposition is submitted from a person whose right or interest has been infringed due to an illegal administrative disposition, such document shall be deemed as a request for administrative appeal under Article 18 of the Administrative Litigation Act, regardless of the title and the agency submitting the document, and when it is possible to correct the defective matter, it shall be ordered to correct it, and when the correction is impossible or non-compliance with the order of correction, it shall be dismissed as illegal. Furthermore, even if the claimant does not have general legal knowledge and the purport of the document submitted is unclear, it shall be interpreted and treated as an administrative agency to the extent possible (see, e.g., Supreme Court Decisions 94Nu16250, Sept. 5, 195; 94Nu12852, Nov. 10, 1997).

However, according to the facts acknowledged by the court below, the plaintiff submitted the above written petition on April 29, 1997, which was notified by the defendant as of October 25, 1995 that the disposition of this case was made by the defendant as of April 29, 1995. Thus, it is apparent that the above written petition was submitted within 90 days or 180 days from the date the disposition of this case was notified to the plaintiff or the date the disposition was made. Meanwhile, according to the records, the above written petition contains not only the contents that are known as being notified of the disposition of this case but also the purport that the inventory of the disposition of this case or the purport that the disposition of this case is dissatisfied with the disposition of this case. The above document contains no indication of the ruling authority, the purport and reason of the request for a trial, the existence of the administrative agency which made the disposition, and the contents of the request for an administrative appeal, so it is not possible to see that the above written petition contains the name and address of the claimant and the date of the request for an administrative disposition.

Thus, although the plaintiff filed an administrative appeal against the disposition of this case as the submission of the above petition, the court below judged that the lawsuit of this case was unlawful because it did not go through the procedure of the previous trial, and therefore, the court below erred by misapprehending the legal principles as to the procedure of the previous trial of administrative litigation, and the appeal is with merit.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Song Jin-hun (Presiding Justice)