(영문) 서울행정법원 2011.11.4. 선고 2011구합14791 판결

The primary purport of the claim is to confirm that the decision of dismissal against the plaintiff on April 26, 201 by the defendant against the plaintiff is null and void (the plaintiff asserts that the above decision of the defendant is a rejection disposition against the civil petition for grievance, but this seems to have been decided by the Board of Audit and Inspection as examined below).

Preliminary claim: Revocation of a decision to dismiss it.

Reasons

1. Details of decision on the request for examination;

A. On July 7, 2010, the Plaintiff reported to the Fair Trade Commission that B engaged in unfair trade practices under the Monopoly Regulation and Fair Trade Act (hereinafter “Fair Trade Act”). Although there was no explicit provision seeking monetary rewards in the report, Article 64-2 of the Fair Trade Act, which is a provision related to the payment of monetary rewards, was stated in the report.

B. On July 27, 2010, the Plaintiff received a reply from the Fair Trade Commission to the effect that the Plaintiff refuses to conduct an investigation into the reported fact with the following purport: “The response to the matters to be submitted with a thickness is the same as the response to the response.”

C. On October 22, 2010, the Plaintiff filed a request with the Fair Trade Commission for an investigation of unfair trade reports and payment of rewards for reports, and the Fair Trade Commission refused to perform the duty of investigation, so the Plaintiff would have cancelled the request. However, on February 16, 2011, the Defendant rejected a request for dismissal on the ground that “the report under Article 49 of the Fair Trade Act was provided to the Plaintiff at the authority of the Fair Trade Commission for the investigation of facts violating the Fair Trade Act, and that there was a specific claim against the reporter to demand that the reporter take appropriate measures in accordance with the details of the report. Therefore, the response by the Fair Trade Commission that rejected the Plaintiff’s report constitutes a disposition or any other act concerning the duties of the person subject to audit by the Board of Audit and Inspection under Article 46(1) of the Board of Audit and Inspection Regulations and Article 46(1) of the Board of Audit and Inspection Regulations.”

D. Accordingly, on February 28, 2011, the Plaintiff filed a civil petition with the Anti-Corruption and Civil Rights Commission to the effect that a re-examination is filed pursuant to the proviso of Article 48 of the Board of Audit and Inspection Act. On March 2, 2011, the Defendant, upon receipt of a civil petition as of March 2, 201, filed a decision to dismiss the Plaintiff’s petition on the ground that the Plaintiff’s request for examination against the Board of Audit and Inspection should be filed within 90 days from the date the Plaintiff becomes aware of the act constituting the cause for the request for examination pursuant to Article 44 of the Board of Audit and Inspection Act and Article 6(1) of the Rules of the Board of Audit and Inspection (hereinafter “instant decision”).

[Ground of recognition] Items A 1 through 3, 5, 6, 8, 11, Eul evidence Nos. 1 and 2, and the purport of the whole pleadings

2. Determination on this safety defense

A. The defendant can institute an administrative litigation against the Fair Trade Commission, which is the pertinent disposition agency, pursuant to Article 46-2 of the Board of Audit and Inspection Act, in the case of a request for examination or decision under Article 43 or 46 of the Board of Audit and Inspection Act. Thus, the decision in this case itself is not subject to

B. On the other hand, according to Articles 19 and 38(1) of the Administrative Litigation Act, in a case where an adjudication on an administrative appeal is based on the unique illegality of the adjudication itself, a lawsuit seeking confirmation of invalidation, etc. may be filed. Here, the unique illegality of the adjudication itself refers to a case where the adjudication itself has an error of law in the subject, procedure, form, or content itself. As examined below, the plaintiff asserts that the dismissal decision of this case, which has the character as a special administrative appeal, has an inherent defect and has an error of law in the subject and content. Thus, the decision of this case is subject to administrative litigation. Accordingly, the defendant's main defense

3. Whether the decision of this case is legitimate

A. The plaintiff's assertion

The decision of this case contains illegal defects as follows. Since such defects are significant and apparent, the decision of this case is null and void, and even if not null and void, the decision of this case must be revoked.

1) The Plaintiff filed a written request for reexamination on February 28, 201, pursuant to Article 2(2)6 of the Enforcement Decree of the Civil Petitions Treatment Act, the exclusion period is not applicable as it constitutes a civil petition for grievance that demands the Plaintiff to remedy the Plaintiff’s rights and interests infringed upon by the Defendant’s decision of rejection on February 16, 201, pursuant to Article 2(2)6 of the Enforcement Decree of the Civil Petitions Treatment Act. The Defendant rendered a decision of rejection on the ground that the Plaintiff distorted it as a request for examination under

2) Article 4(1) of the Regulations on the Delegation of Affairs by the Board of Audit and Inspection provides that a decision to dismiss a request for review shall be a discretionary decision of the Review Board. The decision of this case made in the name of the Review Board who has no power

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) The nature of a civil petition filed by the Plaintiff through the National Examination Board on February 28, 2011

According to the overall purport of Gap evidence No. 11 and the oral argument, the plaintiff filed a civil petition on February 28, 201 with the title of "request for reexamination, etc." with the National Examination Board, which is an online civil petition counter operated by the Anti-Corruption and Civil Rights Commission. The Anti-Corruption and Civil Rights Commission sent the civil petition to the Board of Audit and Inspection on March 2, 2011. The above civil petition filed by the plaintiff includes the contents that the defendant submit a request for reexamination against the decision of rejection made by the plaintiff as of February 16, 2011 pursuant to the proviso to Article 48 of the Board of Audit and Inspection Act. The plaintiff's civil petition filed on February 28, 2011 through the national newspaper. It is evident that the defendant filed a request for reexamination on the decision of rejection made by the plaintiff as of February 16, 2011. Thus, it is reasonable to deem that the request is again filed for an examination on the matters dismissed pursuant to the proviso to Article 48 of the Board of Audit and Inspection Act.

2) Whether a decision of dismissal on the ground of the exclusion period is legitimate

Articles 43 and 44 of the Board of Audit and Inspection Act provide that any interested person may file a request for examination with respect to a disposition or other act concerning the duties of a person subject to audit by the Board of Audit and Inspection, but the Board of Audit and Inspection shall file a request for examination within 90 days from the date on which he/she becomes aware of an act which constitutes the cause for such request. Article 46 of the same Act provides that a request for examination shall be dismissed where he/she fails to meet the requirements and procedures. Article 6(1) of the Rules on the Examination of the Board of Audit and Inspection lists cases where a person subject to audit by the Board of Audit and Inspection is not a disposition or other act, or where the period for request expires (Article 46-2 and Article 48 of the Board of Audit and Inspection Act). Furthermore, with respect to a disposition taken by the head of the administrative agency which has undergone a request for examination and a decision, an applicant for examination may file an administrative litigation with the relevant disposition authority within 90 days after he/she is notified of the relevant

According to the above provisions, if there is a review and decision on a request for review against the Board of Audit and Inspection, a request for review cannot be made again, and in exceptional cases, a request for review against matters rejected by the Board of Audit and Inspection may be made again. In principle, since Article 44 of the Board of Audit and Inspection Act, which stipulates that a request for review against the Board of Audit and Inspection shall be made within 90 days from the date on which an act constituting the cause for the request is known, the request for review against matters dismissed by the defendant constitutes a case where the period for request for review expires after

On July 7, 2010, the Plaintiff reported the fact that it was an unfair trade practice to the Fair Trade Commission on July 7, 2010. On July 27, 2010, the fact that the Plaintiff received a reply from the Fair Trade Commission to the effect that it refused to conduct an investigation into the reported fact is as seen earlier. Accordingly, it is not clear in the record as to when the Plaintiff became aware of the fact that there was an act giving rise to the request for examination (whether the Fair Trade Commission was aware of the Plaintiff’s reply, but the Plaintiff appears to have known of the fact of reply around that time, and at least 90 days have passed since it appears that the Plaintiff was aware of the fact before October 22, 2010 that the first request for an examination was made by the Defendant, which was made on February 28, 2011. It is unlawful as it was filed after the expiration of the period for request.

Furthermore, Article 49(1) and (2) of the Fair Trade Act provides that the Fair Trade Commission may conduct a necessary investigation ex officio when it recognizes that a person is suspected of violating the provisions of this Act, and any person may report such fact to the Fair Trade Commission when it recognizes the existence of a violation of the provisions of this Act. However, the report here is merely providing the Fair Trade Commission with the proviso to urge the ex officio investigation into a violation of the same Act, and it does not constitute a specific claim against the reporter to demand that the reporter take appropriate measures according to the reported content. Thus, even if the Fair Trade Commission did not take measures according to the reported content, it does not affect the reporter's rights and obligations. Article 64-2(1) of the Fair Trade Act provides that the Fair Trade Commission may pay a monetary reward to a person who reports or notifies a violation of this Act and submits evidentiary materials verifying such violation. However, the above provision is based on the premise that an investigation is conducted in accordance with the reported content of the violation, and thus it cannot be applied in cases of a case that is not subject to investigation.

In this case, as seen earlier, the fact that the Fair Trade Commission refused to conduct an investigation on the Plaintiff’s report on unfair trade practices is the same, and the response of the Fair Trade Commission to the Plaintiff cannot be deemed as falling under the disposition or other act related to the duties of the person subject to audit by the Board of Audit and Inspection. Thus, in different opinions, the Defendant may re-request for examination on the matters rejected by him, and in such a case, there is room to interpret that the provision on the exclusion period is not applicable, the Plaintiff’s initial request for examination

3) Whether the subject of the decision is illegal

A decision to dismiss a request for the review of the Board of Audit and Inspection may be made to designate a person acting as a deliberation officer or a relevant public official (Article 4(1) of the Regulations on the Delegation of Office Affairs of the Board of Audit and Inspection, Article 5(1) of the Act on Acting Conduct), and according to the overall purport of arguments, it can be recognized that the transfer position, who is the one examination officer, is designated as the one examination officer from April 1, 201 to the one examination officer, and the fact that the decision was made during the course of performing duties is recognized, because the plaintiff's assertion is without merit.

4) Accordingly, the Defendant’s instant decision is lawful.

4. Conclusion

Therefore, all of the plaintiff's claims are dismissed as it is without merit. It is so decided as per Disposition.