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(영문) 서울행정법원 2021.03.09 2020구합85429
파면부작위
Text

1. The plaintiff's lawsuit against the defendants is dismissed in entirety.

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

Reasons

1. Whether the lawsuit of this case is legitimate

A. The purport of the claim is that a lawsuit seeking a performance judgment ordering an administrative agency to take a certain administrative disposition under the current Administrative Litigation Act, or a lawsuit seeking a formation judgment ordering an administrative agency to directly conduct an administrative disposition having the same effect as a certain administrative disposition is not allowed (see, e.g., Supreme Court Decision 97Nu3200, Sept. 30, 1997). The purport of the claim lies in demanding the Defendants to take compulsory measures against employees of the Ministry of Science and Technology information and communications department in Article 1(1) of the purport of the claim. However, this constitutes a compulsory performance lawsuit not permitted under the Administrative Litigation Act, and thus, it constitutes an incidental law.

B. The purport of the claim is that a lawsuit seeking confirmation of illegality of omission under Article 2 (2) can be filed only by a person who has filed a request for a disposition and who has legal interest in seeking confirmation of illegality of omission. Thus, in a case where a party does not have any legal or logical right to request an administrative agency to take any administrative disposition, or there is no legal interest in seeking confirmation of illegality of omission, there is an illegal omission that is not qualified as the plaintiff or is the subject of a lawsuit

As can not be seen, a lawsuit seeking confirmation of illegality of omission is illegal (see, e.g., Supreme Court Decisions 97Nu17568, Dec. 7, 1999; 992Du11455, Feb. 25, 200). The purport of the claim by the Plaintiff is to seek confirmation of illegality of omission for which the Defendants did not deposit housing benefits.

However, a person entitled to housing benefits can apply for benefits to the head of the competent Si/Gun/Gu (Article 21 Paragraph (1) of the National Basic Living Security Act), and the head of the relevant Si/Gun/Gu shall determine whether to provide benefits and the details of benefits according to the findings of the investigation (Article 26 Paragraph (1) of the National Basic Living Security Act). The Seoul Special Metropolitan City Mayor, Metropolitan City Mayor, Special Self-Governing City Mayor, Special Self-Governing Province Governor,

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