[1] Standard for determining whether an act of an administrative agency can be subject to appeal litigation / Whether any legal basis exists for a certain disposition, and whether a disposition procedure under the Administrative Procedures Act is complied with is an element to consider in the stage of examining the requirements for litigation (negative)

[2] A case where standing to seek revocation of a disposition is acknowledged for a person who is not the other party to an administrative disposition

[3] The measures to be taken by the court where the court of the lawsuit has jurisdiction over an appeal litigation, although the case which should be brought as an appeal litigation under the Administrative Litigation Act was mistakenly brought as a civil litigation

[4] Whether the action of "Revocation of Employment Approval" based on Article 37 (6) of the Rules of Certified Judicial Scriveners although the Local Certified Judicial Scriveners Association to which he/she belongs refused employment approval on the application for approval of employment of a certified judicial scrivener constitutes a "disposition" subject to appeal (affirmative)

[5] In a case where the Local Certified Judicial Scriveners Association rejects an application for approval of employment of a certified judicial scrivener or cancels approval of employment of a person who is employed with approval of employment, whether a person who cannot become a certified judicial scrivener is qualified to sue in an appeal litigation (affirmative)

[6] In a case where the contents of the enforcement decree or the enforcement decree of the parent law are not only to specify whether it is possible to interpret the parent law by systematically and systematically examining the legislative intent of the parent law and the whole of the relevant provisions, or to specify them based on the purport of the mother law provision, whether it is invalid on the ground that there was no provision directly delegated to the mother law (negative)

[7] In a case where the latter part of Article 37(6) of the Rules of Certified Judicial Scriveners which provides that "where a member of the affiliated Local Certified Judicial Scriveners Association commits an act deemed to interfere with the performance of his/her duties as a certified judicial scrivener, the approval of his/her employment shall be revoked, and the latter part of Article 37(6) of the Rules of Certified Judicial Scriveners, deviates from the scope of delegation under Article 23(4) of the Act of Certified Judicial Scriveners who is the mother, and thus,

[1] The term “disposition”, which is the subject of an appeal litigation, means the exercise or refusal of public authority as an enforcement of law with respect to a specific fact by an administrative agency, and other similar administrative actions (Article 2(1)1 of the Administrative Litigation Act). Whether an act by an administrative agency may be the subject of an appeal litigation cannot be determined abstractly and generally. In a specific case, the determination must be made individually by taking into account the content and purport of the relevant Acts and subordinate statutes, the subject, content, form, and procedure of the act, the substantial relation between the act and the disadvantage suffered by the interested parties, such as the other party, and the attitude of the administrative agency or interested parties related to the act, etc. In addition, whether any disposition has legal basis, whether the pertinent disposition complies with the procedure of disposition as prescribed by the Administrative Procedures Act, and whether the pertinent disposition is an element to be considered

[2] The other party to a disadvantage disposition is recognized as standing to sue as a person who has suffered a direct infringement of personal interests. Even if a person is not the other party to an administrative disposition, where there are interests individually, directly, and specifically protected under the relevant laws and regulations, standing to sue to seek revocation of the disposition is recognized.

[3] In a case where a suit should be filed as an appeal suit under the Administrative Litigation Act is erroneous, if the court of the suit has jurisdiction over the appeal suit at the same time, it shall be examined and determined in accordance with the procedure under the Administrative Litigation Act by exercising the right of explanation so that the plaintiff may make a change in the suit through an appeal suit, unless it is found improper even if the suit has been filed as an appeal suit because it is obvious that the suit did not meet the requirements for the litigation as an appeal suit, such as without going through the prior trial procedure or with the lapse

[4] With respect to the application for approval of the appointment of a certified judicial scrivener, a measure or employment approval of the affiliated Local Certified Judicial Scriveners Association to "Refusal of employment approval," but the "cancellation of employment approval" based on Article 37(6) of the Rules of Certified Judicial Scriveners is a law enforcement concerning specific facts conducted by the Local Certified Judicial Scriveners Association, which constitutes the exercise or refusal of public authority, and thus constitutes a "disposition" subject to appeal. Specific reasons are as follows.

In order to employ a certified judicial scrivener, it is intended to prevent the corruption of the certified judicial scrivener and to secure the trust of the general public in the position of the certified judicial scrivener by examining in advance whether the person is disqualified under each subparagraph of Article 23(2) of the Certified Judicial Scriveners Act. The approval for employment of the certified judicial scrivener was the state affairs by the chief of the competent district court who has the supervisory authority over the certified judicial scrivener, and was transferred to the local Certified Judicial Scriveners, but the chief of the competent district court has supervised the appropriateness of the affairs of the local Certified Judicial Scriveners Association by receiving a report on the approval for employment from the local Certified Judicial Scriveners Association and directly handling the objection. In addition, if the certified judicial scrivener violates the Act or the Rules of the Certified Judicial Scriveners with respect to the employment of the certified judicial scrivener, the competent district court shall be subject to disciplinary action against the certified judicial scrivener, so the obligation to employ the

In light of the legal nature and history of the approval system for employment of a certified judicial scrivener, and the fact that the local Certified Judicial Scriveners Association provides for a system to file an objection with the head of the competent district court as a procedure to protest against rejection of employment approval of a certified judicial scrivener, approval for employment of a certified judicial scrivener shall not be deemed simply an internal legal issue between the local Certified Judicial Scriveners Association and the affiliated certified judicial scrivener, or an internal legal affairs of the local Certified Judicial Scriveners Association, and shall be deemed to have been delegated with the state affairs of supervision of a certified judicial scrivener. Therefore, in order to perform supervision over a certified judicial scrivener, the local Certified Judicial Scriveners Association shall be deemed to be

[5] If a local Certified Judicial Scriveners rejects an application for approval of employment of a certified judicial scrivener or cancels approval of employment of a person employed with approval of employment, a certified judicial scrivener who is the other party shall not be employed as a certified judicial scrivener, but shall also be employed as a certified judicial scrivener and shall not be employed as a certified judicial scrivener. The provision of the procedure for raising an objection under Article 37(4) of the Rules on Certified Judicial Scriveners shall be construed to protect the interests of a certified judicial scrivener who has applied for approval of employment and a person who intends to be a certified judicial scrivener as well as the interests of a certified judicial scrivener who has become a certified judicial scrivener. Therefore, in relation to a disposition of refusal of approval of employment or a disposition of revocation of approval of employment of a certified judicial scrivener, a person

[6] An order under the law cannot be amended or supplemented the contents of an individual's rights and obligations, or new contents that are not prescribed by the law, unless otherwise delegated by the law. However, it cannot be deemed null and void even if the enforcement decree or the enforcement decree does not stipulate the possibility of interpretation of the parent law through an organic and systematic examination of the whole of the legislative intent of the parent law and the relevant provisions, or if it is intended to embody them based on the purport of the parent law provision, it cannot be deemed as exceeding the scope of the parent law's regulation.

[7] In a case where the latter part of Article 37 (6) of the Rules of Certified Judicial Scriveners which provides that "where a member of the affiliated Local Certified Judicial Scriveners Association commits an act deemed to interfere with the performance of duties of a certified judicial scrivener, the approval of employment shall be revoked, and thus, goes beyond the scope of delegation under Article 23 (4) of the Certified Judicial Scriveners Act, the case affirming the judgment below holding that the above provisions cannot be deemed to go beyond the scope of delegation under the parent law, considering the fact that the appointment of a certified judicial scrivener is widely delegated by the Supreme Court in order to cope with the changing social and economic situation under Article 23 (4) of the Certified Judicial Scriveners Act and to respond flexibly, so that it can cope with such change, and even if the above provisions are somewhat abstract, the above provisions are necessary to secure the public interest and expertise of the affairs of a certified judicial scrivener, which are the legislative purpose of the approval system for the employment of a certified judicial scrivener, and their meaning can be embodied and clarified through legal interpretation

[1] Articles 2 (1) 1 and 27 of the Administrative Litigation Act / [2] Articles 12 and 35 of the Administrative Litigation Act / [3] Articles 136 of the Civil Procedure Act, Article 4 of the Administrative Litigation Act / [4] Articles 23 (2) and (4), 28, 32, 48 (1) 1, 52, 53, 61, and 62 of the Certified Judicial Scriveners Act, Articles 21 (3) and 37 of the Rules of Certified Judicial Scriveners, Article 35 of the former Enforcement Rule of the Certified Judicial Scriveners Act (amended by Supreme Court Regulation No. 1452 of Dec. 31, 196), Article 2 (1) 1 of the Administrative Litigation Act / [5] Article 23 of the Certified Judicial Scriveners Act, Article 37 of the Certified Judicial Scriveners Act, Article 57 of the Constitution, Article 37 of the Administrative Litigation Act, Article 57 of the Constitution / [Article 57 of the Certified Judicial Scriveners Act]

[1] [3] Supreme Court en banc Decision 2019Da264700 Decided January 16, 2020 (Gong2020Sang, 420) / [1] Supreme Court en banc Decision 2008Du167 Decided November 18, 2010 (Gong2010Ha, 2279) Supreme Court Decision 2015Du60617 Decided August 30, 2016 (Gong2016Ha, 1531) / [2] Supreme Court Decision 2005Du9651 Decided December 27, 2007 (Gong208Sang, 152), Supreme Court Decision 2012Du19496, 1950 decided July 23, 2015 / [1] Supreme Court Decision 2015Du208487 Decided July 27, 2015 (Gong2019Du328485 decided July 27, 2019, /20194)

Plaintiff

Busan Local Certified Judicial Scriveners (Law Firm C&K, Attorneys Kang Chang-ok et al., Counsel for the defendant-appellant)

Busan High Court Decision 2014Na8301 decided May 27, 2015

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

1. Case summary

According to the reasoning of the lower judgment and the record, the following facts are revealed.

A. The Plaintiff obtained approval from the Defendant to employ a certified judicial scrivener clerical staff, and was employed as a clerical staff of the non-party 1’s office from December 5, 2013.

B. From October 15, 2013 to the 29th day of the same month, the Plaintiff, who was employed as the clerical staff of Nonparty 1’s office and had been employed by the Defendant as the clerical staff, employed Nonparty 3 while working in the office of Nonparty 2, a certified judicial scrivener without obtaining approval from the Defendant to the employment of the clerical staff of the certified judicial scrivener. Accordingly, on March 31, 2014, the Defendant held a disciplinary committee for certified judicial scrivener (hereinafter “Disciplinary Committee”) on the ground that the said act of the Plaintiff constitutes grounds for disciplinary action under Article 4 subparag. 2 to 5 of the Defendant’s Disciplinary Rules for the Certified Judicial Scriveners (hereinafter “Disciplinary Provisions”), and notified the Plaintiff at that time.

C. Nevertheless, when the Plaintiff continued to serve as a certified judicial scrivener in the office of Nonparty 1, the Defendant, on June 2, 2014, held a disciplinary committee again on the ground that “the Plaintiff constitutes grounds for disciplinary action under Article 4 subparag. 1, 2, and 4 of the Disciplinary Regulations because he/she refused to comply with the three-month disciplinary action for suspension of employment,” the Defendant, based on Article 37(6) of the Rules of the Certified Judicial Scriveners, issued a decision to revoke the approval of the recruitment of a certified judicial scrivener so that the Plaintiff cannot be employed and employed at the office of Nonparty 1 (hereinafter “the revocation of the appointment of this case”), and then notified this to Nonparty

D. On June 24, 2014, the Plaintiff filed the instant lawsuit with the Busan District Court claiming against the Defendant that “the revocation of the instant employment approval is invalid.”

2. The parties' assertion, the first instance court and the lower court's determination

A. The Plaintiff asserted that the latter part of Article 37(6) of the Rules of the Certified Judicial Scriveners, which is the ground provision for revocation of the appointment approval of this case, (where a member of the Local Certified Judicial Scriveners Association commits an act deemed to interfere with the performance of his/her duties as a member of the Certified Judicial Scriveners Office, the approval of employment shall be revoked; hereinafter referred to as “instant Rules”) goes beyond the scope of delegation under Article 23(4) of the Certified Judicial Scriveners Act, and thus, is null and void in violation of the principle of statutory reservation, and thus, the revocation of the appointment approval of this case based on the invalid Rules

B. The first instance court rendered a judgment dismissing the Plaintiff’s claim on the grounds that the instant provision did not deviate from the limitation of delegated legislation, and that there was no other procedural or substantive defect in the revocation of the recruitment approval of the instant case. The lower court also rendered a judgment dismissing the Plaintiff’s appeal on the same ground. The lower court rendered a judgment dismissing the Plaintiff’s appeal for the same reason.

3. We examine ex officio whether the choice of the method of litigation is appropriate.

A. Relevant legal principles

1) The term “disposition”, which is the subject of an appeal litigation, means the exercise or refusal of public authority as an enforcement of law with respect to a specific fact by an administrative agency, and other similar administrative actions (Article 2(1)1 of the Administrative Litigation Act). Whether an act by an administrative agency may be the subject of an appeal litigation cannot be determined abstractly and generally. In a specific case, the determination must be made individually by taking into account the content and purport of relevant Acts and subordinate statutes, the subject, content, form, and procedure of the act, the substantial relation between the act and the disadvantage suffered by interested parties, such as the other party, and the attitude of the administrative agency or interested parties related to the principle of administration in the rule of law (see Supreme Court en banc Decision 2008Du167, Nov. 18, 2010). In addition, whether any legal basis exists, and whether the procedure of disposition prescribed in the Administrative Procedures Act complies with the pertinent disposition is not considered in the stage of determining whether the pertinent disposition is legitimate, and the elements at the stage of examining litigation requirements (see Supreme Court Decision 6015Du617, Aug. 30, 2016.

2) The other party to a disadvantage disposition is recognized as standing to sue as a person who has suffered a direct infringement of personal interests (see, e.g., Supreme Court Decision 2015Du47492, Mar. 27, 2018). Even if a person is not the other party to an administrative disposition directly, where there are interests individually, directly, and specifically protected by the relevant laws and regulations or relevant laws and regulations, standing to sue seeking revocation of the disposition is recognized (see, e.g., Supreme Court Decisions 2005Du9651, Dec. 27, 2007; 2012Du19496, 19502, Jul. 23, 2015).

3) In a case where a suit should be filed as an appeal suit under the Administrative Litigation Act is erroneous, if the court of the suit has jurisdiction over the appeal suit at the same time, it shall be examined and determined in accordance with the procedures prescribed by the Administrative Litigation Act by exercising the right of explanation to allow the plaintiff to change the suit through an appeal suit, unless it is found improper even if the suit is filed as an appeal suit because it is obvious that the suit did not meet the requirements for the litigation as an appeal suit, such as without going through the prior trial procedure or with the lapse of the period of filing the suit, etc. (see Supreme Court Decision 2019Da264700, Jan. 16, 2020, etc.

B. Whether measures related to approval for the employment of clerical staff of the Local Certified Judicial Scriveners Association fall under administrative disposition

1) Article 23 of the Certified Judicial Scriveners Act regulates the employment of a certified judicial scrivener, and provides for the grounds for disqualification in each subparagraph of paragraph (2), and Paragraph (4) provides that “the number and employment of clerical staff and other necessary matters shall be prescribed by the Supreme Court Regulations.” Article 37 of the Regulations on Certified Judicial Scriveners enacted by the Supreme Court upon delegation provides that an application for approval of employment of clerical staff of a certified judicial scrivener (Paragraph (1) and (2) shall be made by a certified judicial scrivener (Paragraph (3) and (8)), examination procedures of a affiliated Local Certified Judicial Scriveners (Paragraph (4) and procedures for filing an objection with the competent district court (Paragraph (7)) at the time of refusal of employment approval, and where a certified judicial scrivener falls under any subparagraph of Article 23(2) of the Act or performs any act deemed to interfere with the performance of his/her duties as a certified judicial scrivener (Paragraph (6) shall be revoked).

2) With respect to an application for approval of the appointment of a certified judicial scrivener, the measures or employment approval of the affiliated Local Certified Judicial Scriveners Association to “a rejection of employment approval,” but the measures to “a revocation of employment approval” based on Article 37(6) of the Rules on Certified Judicial Scriveners, which is a law enforcement with regard to specific facts conducted by the Local Certified Judicial Scriveners Association, constitutes the exercise or refusal of public authority, and thus, constitutes a “disposition” subject to appeal.

A) According to the Certified Judicial Scriveners Act, a certified judicial scrivener is obliged to join the Local Certified Judicial Scriveners Association established under the jurisdiction of the district court having jurisdiction over the seat of his/her office (Article 28), and is supervised by the chief of the district court having jurisdiction over the seat of his/her office (Article 32). The Local Certified Judicial Scriveners Association is a juristic person for which establishment by jurisdiction of the district court is enforced (Article 52) in order to maintain the dignity and improve duties of a certified judicial scrivener and to provide guidance and contact with members (Article 52), and the Korean Certified Judicial Scriveners Association is enforced to jointly establish the Local Judicial Scriveners Association (Article 62). The enactment and amendment of the rules of the Local Judicial Scriveners Association shall be subject to the approval of the Chief Justice of the Supreme Court, and the Local Certified Judicial Scriveners Association shall be supervised by the chief of the district court having jurisdiction over the seat of the Korean Certified Judicial Scriveners Association

B) The approval of employment of a certified judicial scrivener was conducted by the chief of the competent district court (see Article 35 of the former Enforcement Rule of the Certified Judicial Scriveners Act (amended by Supreme Court Regulation No. 1452, Dec. 31, 1996). According to the rules of a certified judicial scrivener, where a certified judicial scrivener approves an application for employment approval of a certified judicial scrivener, he/she shall report the fact to the chief of the competent district court without delay after the approval, and where a certified judicial scrivener refuses to apply for employment approval of a certified judicial scrivener, he/she shall notify the chief of the competent district court of the reason therefor (Article 37(3)). A person whose approval of employment is refused may file an objection with the chief of the competent district court within one month from the date he/she is notified, and the chief of the district court shall order the appointment approval of a certified judicial scrivener and the local Certified Judicial Scriveners Association shall be transferred without delay (Article 37(4) and Article 21(3) of the same Act). If a certified judicial scrivener violates the Local Judicial Scriveners Act or the Act.

C) In order to employ a certified judicial scrivener, it is intended to review in advance whether the person is disqualified under each subparagraph of Article 23(2) of the Certified Judicial Scriveners Act, thereby preventing the corruption of the certified judicial scrivener and securing the trust of the general public in respect of the position of the certified judicial scrivener. The approval of employment of the certified judicial scrivener was the State affairs by the chief of the competent district court having the supervisory authority over the certified judicial scrivener, and was transferred to the Local Certified Judicial Scriveners, but even thereafter, the chief of the competent district court supervises the adequacy of the affairs of the Local Judicial Scriveners Association by receiving a report on the approval of employment from the Local Certified Judicial Scriveners Association and directly handling the objection. In addition, if a certified judicial scrivener violates the Certified Judicial Scriveners Act or the Rules of the Certified Judicial Scriveners with respect to the employment of the certified judicial scrivener, the competent district court may be subject to disciplinary action from the head of the competent district court

D) In light of the legal nature and history of the approval system for employment of a certified judicial scrivener, and the fact that the local Certified Judicial Scriveners Association provides that the competent district court shall file an objection against the rejection of employment approval of a certified judicial scrivener. In light of the above, approval for employment of a certified judicial scrivener in the local Certified Judicial Scriveners Association shall not be deemed simply an internal legal issue between the local Certified Judicial Scriveners Association and the affiliated certified judicial scrivener or an internal legal affairs of the local Certified Judicial Scriveners Association, and shall be deemed to be conducted upon delegation of the state affairs of a certified judicial scrivener. Therefore, in order to supervise a certified judicial scrivener, the local Certified Judicial Scriveners Association shall be deemed to be the subject of the exercise of public authority, which is a public corporation established and the member of which are forced to join by the law, and which is the subject of the exercise of the authority regarding

3) When a Local Certified Judicial Scriveners Association rejects an application for approval of employment of a certified judicial scrivener or cancels approval of employment of a person employed with approval of employment, a certified judicial scrivener who is the other party shall not be employed as a certified judicial scrivener, but shall also be employed as a certified judicial scrivener and shall not be employed as a certified judicial scrivener. The provision of the procedure for raising an objection under Article 37(4) of the Rules on Certified Judicial Scriveners shall be construed to protect the interests of a certified judicial scrivener who has applied for approval of employment and a person who intends to be a certified judicial scrivener as well as the interests of a certified judicial scrivener who has become a certified judicial scrivener. Accordingly, in relation to a disposition of rejection of approval of employment or revocation of approval of employment of a certified judicial scrivener, a certified judicial scrivener who has

C. We examine the above facts in light of the aforementioned legal principles.

1) The revocation of the recruitment approval of this case constitutes a “disposition” subject to an administrative litigation under the Administrative Litigation Act, and since the Plaintiff is not a direct party to the revocation of the recruitment approval of this case, but there was any disadvantage that is no longer employed as a member of the certified judicial scrivener Nonparty 1, the Plaintiff should have filed an administrative litigation under the Administrative Litigation Act seeking the revocation of the revocation of the appointment approval of this case or the nullification thereof.

2) In the case of the instant lawsuit under the Administrative Litigation Act, the first instance court’s collegiate panel of Busan District Court and the Busan High Court’s collegiate panel of Busan High Court, which are the first instance court, have jurisdiction over the first instance court and the appellate court’s judgment, and there is no problem of violation of jurisdiction. Moreover, since the Plaintiff filed the instant lawsuit on June 24, 2014 after being notified of the revocation of the recruitment approval of the instant case on June 24, 2014, the Plaintiff complied with the filing period of the revocation lawsuit and did not meet the other litigation requirements. Therefore, the lower court should have deliberated and determined whether the revocation of the appointment of the instant case is a legitimate disposition in accordance with the procedures prescribed by the Administrative Litigation Act by exercising the right to ask the Plaintiff for a revocation of a suit under the Administrative Litigation Act

3) Nevertheless, the lower court maintained the first instance court’s decision that the revocation of the recruitment approval of this case constitutes a disposition subject to appeal litigation on the premise that the instant lawsuit constitutes a civil lawsuit, thereby dismissing the Plaintiff’s appeal by maintaining the first instance court’s decision that deemed that the instant lawsuit constituted a procedural and substantive defect in the revocation of the recruitment approval of this case. In so determining, the lower court erred by misapprehending the legal doctrine on disposition and method of litigation, which are the subject of appeal litigation, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion

4. The grounds of appeal are examined.

A. Although a statutory order under the law cannot modify or supplement the contents of an individual’s rights and obligations or prescribe new contents that are not prescribed by the law, it shall not be deemed null and void even if it does not go beyond the scope of the regulation of the mother law if it is for the purposes of embodying it based on the purport of the mother law and the purport of the relevant provisions in an organic and systematic manner by examining the whole of the legislative purport of the mother law and the relevant provisions, or if it is for the purposes of embodying them based on the purport of the provisions of the mother law, it shall not be deemed null and void (see Supreme Court Decision 2012Du19526, Aug. 20, 2014, etc.).

B. The court below determined that the provision of this case cannot be deemed as a deviation from the scope of delegation of the parent law, in light of the following: (a) the provision of this case is widely delegated matters to be specified by the Supreme Court Regulations regarding the employment of certified judicial scrivener clerical staff so that it can cope with changes in the social and economic situation under Article 23(4) of the Certified Judicial Scriveners Act; and (b) the provision of this case is somewhat abstractly abstract; and (c) the provision of this case is necessary to secure the public interest and expertise of certified judicial scrivener affairs, which are the legislative purpose of the approval system for employment of certified judicial scriveners, and its meaning can

C. Examining the contents, structure, legislative purpose, etc. of the relevant provisions in light of the aforementioned legal principles, the lower judgment did not err by misapprehending the legal doctrine on the principle of statutory reservation and the limitation of delegated legislation, which affected the conclusion of the judgment.

5. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Noh Jeong-hee (Presiding Justice)