[1] The legal nature of the period of filing an action under Article 20(1) and (3) of the Administrative Litigation Act (=unpredetermined period) and the meaning of "reasons for which a party cannot be held responsible" under Article 160(1) of the former Civil Procedure Act, which applies mutatis mutandis to the completion of the indictment pursuant to Article 8 of the same Act

[2] The case holding that the circumstance that trust in the constitutionality of the legal provision which was decided as unconstitutional does not constitute "reasons for which a party cannot be held liable" under Article 160 (1) of the Civil Procedure Act which is applied mutatis mutandis to the subsequent completion of the act of filing a lawsuit pursuant to Article 8 of the Administrative Litigation Act

[1] Article 20 (1) and (3) of the Administrative Litigation Act provides that "a revocation lawsuit shall be instituted within 90 days from the date on which the party becomes aware of the disposition, etc." is a peremptory term. However, where the party is unable to comply with it due to any cause not attributable to him/her, the period for filing a lawsuit shall be the peremptory term. However, where the party is unable to comply with it due to a cause not attributable to him/her, it shall be able to complete the litigation which has been neglected within two weeks after such cause ceases to exist pursuant to Article 160 (1) of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002) which applies mutatis mutandis under Article 8 of the same Act (amended by Act No. 6626 of Jan. 26, 2002.

[2] The case holding that the circumstances that trust the constitutionality of the legal provision, which was declared unconstitutional, do not constitute "reasons for which the parties cannot be held responsible" under Article 160 (1) of the Civil Procedure Act, which is applied mutatis mutandis to the subsequent completion of the act of instituting an action pursuant to Article 8 of the Administrative Litigation Act.

[1] Articles 8 and 20 of the Administrative Litigation Act, Article 160 (1) (see current Article 173 (1)) of the former Civil Procedure Act (amended by Act No. 6626 of January 26, 2002) / [2] Article 61 of the former Local Public Officials Act (amended by Act No. 6786 of December 18, 2002), Article 160 (1) of the former Civil Procedure Act (amended by Act No. 6626 of January 26, 2002) (see current Article 173 (1))

[1] Supreme Court Decision 86Meu224 delivered on March 10, 1987 (Gong1987, 641), Supreme Court Decision 97Da50152 delivered on October 2, 1998 (Gong1998Ha, 2574), Supreme Court Decision 99Da9622 delivered on June 11, 199 (Gong199Ha, 1391), Supreme Court Decision 2000Du6916 delivered on May 8, 2001 (Gong2001Ha, 1395) / [2] Constitutional Court en banc Decision 200Hun-Ma788 delivered on August 29, 2002 (Hun-Ma72, 760)

Plaintiff (Attorney Lee Jong-sung et al., Counsel for the plaintiff-appellant)

Senior Superintendent of the Office of Education;

Daegu High Court Decision 2004Nu498 delivered on July 30, 2004

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

We examine the grounds of appeal.

1. Fact-finding and judgment of the court below

According to the reasoning of the judgment of the court below, the court below found that the plaintiff was unable to bring an action against the plaintiff on January 1, 1987 to 1, 200 on December 20, 20, which was declared 1 as a public official belonging to the office of education, and that "the plaintiff received bribe in relation to his duties from around 198 to May 20, 20." On April 18, 201, 3 years of suspended execution and 14,783,50 won for 6 months of 20 years of 7 months of unconstitutionality and 10 days of 7 months of unconstitutionality determination of the former Local Public Officials Act, which had not been declared unconstitutional for 10 months of 5 months of 20 years of unconstitutionality determination of this case's unconstitutionality, and that the above judgment of the court below rejected the plaintiff's appeal against the plaintiff on October 12, 2006 of this case's 20 years of unconstitutionality determination of the Local Public Officials Act.

2. The judgment of this Court

Article 20 (1) and (3) of the Administrative Litigation Act provides that "a revocation lawsuit shall be instituted within 90 days from the date on which the party becomes aware of the disposition, etc." is a peremptory term. However, where the party is unable to comply with it due to any cause not attributable to him/her, he/she may subsequently complete the litigation (instigation of lawsuit) neglected within two weeks after such cause ceases to exist pursuant to Article 160 (1) of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002) (see Article 173 of the current Civil Procedure Act) which is applicable mutatis mutandis pursuant to Article 8 of the same Act (amended by Act No. 6626 of Jan. 26, 200). The reason why the party cannot be held liable refers to the reason why the party could not comply with the period even though the party had paid due attention to do the litigation (see Supreme Court Decision 200Du6916, May 8, 2001).

Therefore, in a case where the plaintiff was served with a written ruling on the disposition of this case and did not bring an action within the period for filing a lawsuit under the Administrative Litigation Act, even if the reason was due to the plaintiff's trust that he was forced to retire from office under Article 61 of the former Local Public Officials Act while the judgment on the suspension of sentence of eight months was finalized, the plaintiff was unable to file a lawsuit seeking cancellation of the disposition of this case, and there is no circumstance to deem that the plaintiff could not file a petition for adjudication on constitutionality seeking a decision of unconstitutionality of the above provision of this case in the litigation proceedings, or a petition seeking a decision of unconstitutionality of the above provision of this case could not be filed in parallel with or separately from the institution of the above lawsuit (According to the reasoning of the decision of unconstitutionality of this case, the constitutional complaint seeking a decision of unconstitutionality of the above provision of this case is within the period for filing a lawsuit seeking cancellation of the disposition of this case, and the law or provision of this case, which was decided unconstitutional, becomes void as of October 24, 2001.

However, the court below determined that the plaintiff could not observe the period of filing a lawsuit due to a cause not attributable to the plaintiff until the date of the decision of unconstitutionality, and therefore there is an error of law by misunderstanding the legal principles as to the subsequent completion of litigation. However, the court below's conclusion that the plaintiff's lawsuit of this case was filed after the lapse of the period of filing a lawsuit on the grounds different from the reasoning stated in its reasoning is justifiable, and such error of law does not affect the conclusion of the judgment. The court below's above error does not affect the conclusion of the judgment. The ground of appeal that the plaintiff could not observe the period of filing a lawsuit due to a cause not attributable to the plaintiff after the decision of unconstitutionality of this case became final and conclusive

3. Conclusion

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.

Justices Yoon Jae-sik (Presiding Justice)