2015Nu49285 Action for the Confirmation of illegality of omission

A Educational Foundation

The Minister of Education

Seoul Administrative Court Decision 2015Guhap52470 decided June 11, 2015

December 10, 2015

January 21, 2016

1. Revocation of a judgment of the first instance;

2. The instant lawsuit shall be dismissed.

3. All costs of the lawsuit shall be borne by the defendant.

1. Purport of claim

On February 25, 2013, the plaintiff's application for approval of taking office against B, C, and D on February 25, 2013 was confirmed to be unlawful in omission for which the defendant did not take any measure.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Where an administrative agency does not have a legal obligation to respond to a passive disposition such as accepting, rejecting, dismissing, etc. a request based on a citizen’s legal or sound right within a reasonable period of time, the purpose of a lawsuit for confirmation of illegality of omission is to remove a passive legal state that is called omission or non-satisfy in response to an administrative agency’s response promptly by ascertaining illegality of the omission at the time of judgment (the conclusion of oral pleadings in the court of fact-finding). Furthermore, in a case where an administrative agency has an administrative agency take a disposition, etc. against the administrative agency by binding force of the judgment in question and again objects to the pertinent disposition, it would ultimately protect citizens’ rights and interests. If an administrative agency removes a situation of omission due to an administrative agency’s active or passive writing about the request by the time of the lawsuit through the time of judgment after the lawsuit is filed, it would lose the benefit of the lawsuit and thus, it cannot be exempt from the lawsuit (Supreme Court Decision 89Nu4758 delivered on September 25, 190).

2. In full view of the purport of evidence No. 5 in the instant case, the Plaintiff filed an application with the Defendant for approval of taking office against B, C, and D on February 25, 2013, and the Defendant may recognize the fact that he/she returned the above application to the Plaintiff on October 27, 2015. As such, the state of omission in the above application for approval can be deemed to have been annulled, and therefore, the instant lawsuit claiming confirmation of illegality in omission against the above application for approval was unlawful by losing the interest of lawsuit.

3. If so, the lawsuit of this case shall be dismissed in an unlawful manner. Since the judgment of the court of first instance is unfair in conclusion, the judgment of the court of first instance shall be revoked, and the lawsuit of this case shall be dismissed, and the total cost of the lawsuit of this case shall be borne by the defendant (see Article 32 of the Administrative Litigation Act).

The presiding judge and judges shall be appointed.

Judges Gangseo-gu

Judges Nam-yang