A. Whether the proviso of Article 20(2) of the Administrative Litigation Act applies to a third party who is not the other party to an administrative disposition (negative)

(b) Any third person who is not the other party to an administrative disposition and justifiable grounds provided for in the proviso of Article 18 (3) of the Administrative Appeals Act.

A. Article 20(2) of the Administrative Litigation Act provides that a case that does not raise an administrative appeal or is subject to the application of a case that does not go through the adjudication is clear by the regulations itself, and that a case that is brought by a third party who is not the other party to an administrative disposition is not included in a case that may bring an action without filing an administrative appeal under Article 18(3) of the same Act, so the proviso to Article 20(2) of the same Act shall not apply to such a case, and

B. Since a third party, who is not the direct other party of an administrative disposition, is not known immediately that there is an administrative disposition, it shall be limited to the case where there is a justifiable reason provided for in the proviso of Article 18(3) of the Administrative Appeals Act excluding the application of the exclusion period, unless there are special circumstances that he knows that the administrative disposition is taken within the exclusion period

(a) Article 20 (2) of the Administrative Litigation Act;

Plaintiff

Minister of Foreign Affairs

Seoul High Court Decision 87Gu1489 delivered on March 24, 1988

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

We examine the Defendant’s first ground for appeal.

1. According to the reasoning of the judgment below, the court below held that Article 20(2) of the Administrative Litigation Act provides that a lawsuit shall not be filed after the lapse of 180 days from the date on which the administrative disposition is known, and one year from the date on which the disposition is taken, and thus the exclusion period of the administrative litigation shall be set, but a third party who is not the other party to the administrative disposition may file a lawsuit within the exclusion period under the proviso of Article 20(2) of the Administrative Litigation Act, barring special circumstances where it is possible to file a lawsuit within the exclusion period, and there is no evidence to acknowledge that the plaintiff could file a lawsuit within the exclusion period after the exclusion period, and thus, there is no special circumstance where the plaintiff could have filed a lawsuit within the exclusion period. Thus, the defendant'

2. However, Article 20(2) of the Administrative Litigation Act provides that a lawsuit against a case in which an administrative appeal is not filed or which fails to go through the adjudication shall not be filed after 180 days from the date on which the disposition is known, or after 1 year from the date on which the disposition is taken: Provided, That this provision provides that this shall not apply in case where there is any justifiable reason, and it is obvious by the regulations that the case in which an administrative appeal is not filed

However, under Article 18(2) and (3) of the same Act, cases that do not bring an administrative appeal (Paragraph (3)) and cases that do not go through an adjudication (Paragraph (2)) are classified. As such, cases that are brought by a third party, other than the other party to an administrative disposition, are not included in cases that can bring an administrative appeal but are not included in cases that can bring an action, such cases are not subject to an administrative disposition. Thus, the provisions of exclusion period for filing an action cannot be ruled out, by applying the proviso of Article 20(2) of the same Administrative Litigation Act to cases that are brought by a third party who is not the other party

However, under Article 18(3) of the Administrative Appeals Act, a request for a trial shall not be filed after the lapse of 180 days from the date of the disposition: Provided, That the same shall not apply to the case where there is a justifiable reason, unless there is any special reason. Since a third party who is not the direct party to the administrative disposition is in danger of being aware of the existence of such administrative disposition, barring special circumstances, it may be deemed that there is a justifiable reason for excluding the application of the above exclusion period.

Ultimately, a third party, who is not the other party to an administrative disposition, may file an administrative appeal without referring to the exclusion period, unless there are special circumstances that it is possible to file an administrative appeal during the exclusion period of a lawsuit under the main sentence of Article 18(3) of the Administrative Appeals Act, but in any case, it shall not immediately file an administrative litigation without filing an administrative appeal (Article 83Nu59, Supreme Court Decision 83Nu59, Jul. 12, 1983, is related to the applicable cases of the former party law and the former Administrative Litigation Act, and therefore,

3. We examine the case in this case. According to Gap evidence No. 1-1 submitted by the plaintiff, the plaintiff submitted an inquiry to the head of the Government's joint civil petition office on January 17, 1987 that the plaintiff submitted to an administrative agency for the purpose of the business scope of an administrative secretary under the Government's joint civil petition act, whether it is included in the scope of business of an emigration agent under the Emigration Act, or included in the scope of business of an emigration agent under the Emigration. In light of the facts of the claims in this case, it is reasonable to view that the plaintiff made the above inquiry by means of knowing that the agency agency for international marriage declaration was the business of an emigration agent under the Emigration Act, and demanding correction thereof.

If the plaintiff asked the above questions with the knowledge of the approval disposition of this case, the plaintiff should be deemed to have known of the above disposition until January 17, 1987. However, according to the evidence No. 4-1 of this case, the plaintiff filed an administrative appeal on Oct. 14, 1987, which must be from January 17, 1987 to 180 days after the elapse of 180 days from January 17, 1987. Thus, the lawsuit of this case is illegal as a lawsuit without a legitimate procedure of the previous trial.

4. Although the lower court should have deliberated the above points and conducted a legitimate procedure of the prior trial, it cannot be said that the lower court erred by misapprehending the legal doctrine on administrative appeals and neglecting the deliberation, thereby adversely affecting the conclusion of the judgment.

Therefore, the judgment of the court below shall be reversed and remanded, and it is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Jae-seok (Presiding Justice)