Subject Matter of Appeals Suits
Subject Matter of Suits for Revocation- Provisions of the Administrative Litigation Act are centered around suits for revocation, among the appeals lawsuits, and prescribe the subject matter of suits for revocation as “disposition, etc.”. These provisions apply mutatis mutandis to suits for affirmation of nullity, etc. and suits for affirmation of illegality of omission (Article 38 and Article 19 of the Administrative Litigation Act).
- A “disposition, etc.” is an exercise of public power or refusal to exercise such power, and any other equivalent administrative action, which constitute the administrative agency's execution of the law in relation to a specific set of facts, and rulings on administrative appeals (Subparagraph 1 of Article 2 (1) of the Administrative Litigation Act).
Disposition- A “disposition” is an exercise of public power or refusal to exercise such power, and any other equivalent administrative action, which constitute the administrative agency's execution of the law in relation to a specific set of facts (Subparagraph 1 of Article 2 (1) of the Administrative Litigation Act).
Requirements for Disposition- It must be an act of an administrative agency.
· An “administrative agency” is an administrative body with authority for a disposition or omission.
· An administrative agency in this sense includes not only an administrative body within the meaning of the laws on administrative organizations, but also any public organizations and their organs, or private individuals, which takes administrative actions having been delegated or entrusted with particular affairs of the State or local government pursuant to statutes (Article 2 (2) of the Administrative Litigation Act).
· Therefore, actions exerting public power, taken by public organizations such as Korea Land and Housing Corporation or Korea Labor Welfare Corporation which have been delegated or entrusted with affairs of the State or local governments, can become subject to an appeals suit.
- It must be an act exerting public power.
· A “disposition” is the administrative act of an administrative agency in its entirety, carried out pursuant to the law and from a superior position.
· Therefore, an act of an administrative agency, such as an act rooted in private law (e.g. a contract for work concluded as a private economic agent) or a public law contract concluded with a private individual on an equal footing (e.g. notification of termination of employment contract in respect of a public official employed on a contract basis), does not constitute an act exerting public power.
- It must be an act executing the law in relation to a specific set of facts.
· Since the purpose of administrative litigation is to resolve legal disputes concerning specific cases, only an act of execution of the law in relation to a specific set of facts is subject to administrative litigation.
· However, where a statute or municipal ordinance takes effect in law without an intervening act of execution, for example by directly impacting on citizens’ specific rights and obligations or legal interests, such a case is subject to administrative litigation.
· Furthermore, even a general disposition in respect of many and unspecified persons is subject to administrative litigation, if it has the effect of regulating a particular person's rights or legal interests in an individual and specific manner.
- It must be a legal act which has a direct impact on citizens’ rights and obligations.
· Since the purpose of administrative litigation is to provide relief from an infringement of citizens’ rights and interests, acts such as the following are not subject to administrative litigation: an administrative agency's internal acts or intermediate dispositions which do not cause a direct variation to citizens’ rights and obligations; opinions, responses to questions or internal work processing procedures; or factual acts which do not involve exertion of power such as recommendations, solicitations or provision of administrative guidance.
- Other than administrative litigation, there must not be any provisions for special procedures dealing with dissatisfactions.
Ruling on Administrative Appeals- Rulings on administrative appeals are subject to administrative litigation (Subparagraph 1 of Article 2 (1), Article 3 and Article 19 of the Administrative Litigation Act).
- Principle of Original Disposition
· A suit for revocation is in principle brought against the administrative agency's original disposition. Therefore, a lawsuit may be filed against a ruling of an administrative appeals commission only in cases where there is an inherent illegality within the ruling itself (Proviso to Article 19 of the Administrative Litigation Act).
· If the plaintiff is seeking to revoke the original disposition due to a dissatisfaction with the outcome of an administrative appeal that has been filed, such a suit for revocation shall be filed within 90 days of the date of receiving service of an authenticated copy of the written ruling, or within one year of the date of the ruling (Article 20 of the Administrative Litigation Act).
- Principle of Ruling on Administrative Appeals (Exception to Principle of Original Disposition)
· In the case of special administrative appeals prescribed in individual statutes, there are circumstances where a suit for revocation may not be filed in respect of the original disposition, and may only be filed in respect of an appeal ruling.
Subject Matter of Suits for Affirmation of Nullity, etc.- The subject matter of suits for revocation applies mutatis mutandis to the subject matter of suits for affirmation of nullity, etc. (Article 38 (1) and Article 19 of the Administrative Litigation Act).
- Therefore, as with suits for revocation, dispositions and rulings are subject to suits for affirmation of nullity, etc.
Subject Matter of Suits for Affirmation of Illegality of Omission- The subject matter of a suit for affirmation of illegality of omission is an omission, and an “omission” is an administrative agency's failure to dispose of an application, despite having a legal obligation to dispose of it in a certain manner within a reasonable time period (Subparagraph 2 of Article 2 (1) of the Administrative Litigation Act).
- Requirements to Establish Omission
· There must be an application by a person who has a right, as a matter of law or naturalis ratio, to make an application.
√ In order to establish omission, there must be an application by a person who has the right, as a matter of law or naturalis ratio, to require its disposition in a certain manner.
· A reasonable time period must have passed.
√ In order to qualify as an omission subject to an administrative lawsuit, the administrative agency must have failed to take any action even though a reasonable time period for a certain disposition has passed.
√ A “reasonable time period” is the time period which an administrative agency ordinarily requires for the disposition of an application. The processing period published pursuant to the Administrative Procedures Act may be a reference by which reasonable time period is judged (Article 19 of the Administrative Procedures Act).
· There must be a legal obligation on the administrative agency to dispose of the application in a certain manner.
√ Omission is established where, despite having a legal obligation in respect of the disposition of an application, such as its acceptance or dismissal, the administrative agency fails to take action.
· The administrative agency must have failed to take any action in disposing of the application.