Whether it is necessary to vindicate in case the grounds for application for challenge include clearly the matters in the case records of the court concerned.

The purpose of requesting the submission of the method of vindication under Article 40(2) of the Civil Procedure Act is to prevent the parties from abusing or abusing the right to apply for challenge, and it should not be determined by the court with only the method of vindication presented by the parties (applicants). Thus, in case where the grounds constituting the grounds for challenge include clear facts in the case records of the court concerned, that is, substantial facts to the court, the applicant for challenge does not need to vindicate the facts differently. Therefore, in such a case, even if the speaker failed to submit the method of vindication within the prescribed period, the court which received the motion shall not make a decision of rejection on the grounds of such reasons, even though the applicant for challenge did not submit the method of vindication within the prescribed period of time.

Article 8(2) of the Administrative Litigation Act, Article 40(2) of the Civil Procedure Act

Supreme Court Order 78Ma255 Dated October 23, 1978

Re-appellant

Seoul High Court Order 88Da58 dated April 27, 1988

The order of the court below is reversed, and the case is remanded to Seoul High Court.

The grounds of reappeal are examined.

According to the records of the case, the Seoul High Court held that the Re-Appellant was the plaintiff in the case of claim for the procedure for the cancellation of mining right, such as the execution of procedure for the cancellation of mining right, and that the Re-Appellant took unfair measures for the cancellation of the above case, and the Re-Appellant dismissed the case of application for the suspension of the effect of permission of mining right application filed by the same court in relation to the above case at the same time as the case at the above 86Gu1089, and the Re-Appellant applied for the designation of date for the above 86Gu1089, and decided that the above court designated the date for pleading and examined the case at the above court. As such, the Re-Appellant claimed that the above grounds for exclusion falling under Article 37 subparagraph 5 of the Civil Procedure Act and the above reasons constitute the circumstance that it is difficult to expect the fairness

However, it is clear that the original court, which received the challenge, dismissed the challenge in accordance with Article 41 (1) of the Act on the ground that the re-appellant did not submit a method of vindication of the cause of the challenge within three days from the date of the challenge.

However, in Article 40 (2) of the Civil Procedure Act which is applicable mutatis mutandis by Article 8 (2) of the Administrative Litigation Act, the purpose of requesting the submission of a method of vindication is to prevent the parties from abusing or abusing their right to apply for challenge, and it does not require the court to make a decision with only the method of vindication submitted by the parties concerned. Thus, in case where the reason for challenge is clear in the case records of the court concerned, that is, a substantial fact to the court, the applicant for challenge does not need to explain the fact differently. Therefore, in such case, even if the applicant for challenge failed to submit the method of vindication within the prescribed period, even if he did not submit the method of vindication within the prescribed period, it shall be interpreted that the court in receipt of the request for challenge cannot make a decision of rejection for such reason (see Supreme Court Order 78Ma255, Oct. 23, 1978).

However, according to the above, in the case of this case, the court's rejection of the challenge is illegal on the ground that the original court, which received the challenge, did not submit a vindication method. The reappeal of this case is eventually justified.

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

Justices Ansan-man (Presiding Justice)