[1] The meaning of "reasons for which a party cannot be held liable" under Article 173 (1) of the Civil Procedure Act, which applies mutatis mutandis to the completion of the act of filing a lawsuit pursuant to Article 8 (2) of the Administrative Litigation Act

[2] Whether an administrative litigation under Article 18 (6) of the Administrative Appeals Act can be naturally applied to the institution of such administrative litigation (negative)

[1] Article 8 (2) of the Administrative Litigation Act, Article 173 (1) of the Civil Procedure Act / [2] Article 18 (6) of the Administrative Appeals Act

[1] Supreme Court Decision 2000Du6916 decided May 8, 2001 (Gong2001, 1395)

Plaintiff (Law Firm Han, Attorneys Lee Jong-il et al., Counsel for the plaintiff-appellant)

The head of Dongdaemun-gu Seoul Metropolitan Government

Seoul High Court Decision 2006Nu29517 decided July 16, 2007

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

A revocation lawsuit shall be instituted within 90 days from the date the party becomes aware of the disposition (main sentence of Article 20 (1) of the Administrative Litigation Act), and the period for filing the lawsuit shall be a peremptory term (Article 20 (3) of the same Act): Provided, That if the party is unable to comply with the request due to any cause not attributable to him/her, he/she may subsequently complete the lawsuit which has been neglected within two weeks after such cause ceases to exist pursuant to Article 173 (1) of the Civil Procedure Act which is applicable mutatis mutandis pursuant to Article 8 of the same Act, and the party's non-liability refers to a cause for which the party is unable to comply with the request even though the party has paid general attention to conduct the litigation (see Supreme Court Decision 200Du6916, May 8, 2001, etc.). Meanwhile, Article 18 (6) of the Administrative Appeals Act provides that the period for filing the request for a trial may not be applied by analogy to the administrative litigation.

Based on the reasoning of the judgment of the court of first instance, the plaintiff was notified of the disposition of this case at least around February 2006, and since the lawsuit of this case was filed on July 5, 2006, which is clear from the date when 90 days elapsed as stipulated in Article 20(1) of the Administrative Litigation Act, the lawsuit of this case was filed in excess of the time limit for filing a lawsuit, and thus, deemed unlawful. Furthermore, even if the defendant's failure to notify the procedure for filing an administrative appeal at the time of the disposition of this case violates Article 26 of the former Administrative Procedure Act, the court below rejected the plaintiff's assertion to the effect that "it is legitimate in accordance with Article 20(2) of the Administrative Litigation Act" is not provided for the effect of violation of the same Act, and the Administrative Litigation Act does not provide for the effect of non-disclosure of the time limit for filing a lawsuit, unlike Article 18(6) of the Administrative Appeals Act, on the ground that it cannot be deemed that the plaintiff can bring an administrative lawsuit within one year from the date of this case.

Examining the reasoning of the lower judgment in light of the aforementioned legal principles and relevant provisions, the lower court’s aforementioned determination is just and acceptable, and ex officio examination of the record reveals that the Plaintiff was unable to comply with the period of filing the instant revocation lawsuit, despite the Plaintiff’s due diligence to file the instant revocation lawsuit, there was no circumstance to acknowledge that there was a ground for completing the litigation in which the period of filing the instant revocation lawsuit could not be complied with.

The court below did not err by misapprehending the legal principles of Article 26 of the former Administrative Procedures Act and Article 20 (2) of the Administrative Litigation Act, contrary to what is alleged in the grounds of appeal.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cha Han-sung (Presiding Justice)