Standing to Sue
Standing to Sue in Suits for Revocation
- “Standing to sue in suits for revocation” is a qualification which allows a person to file a suit for revocation in relation to an individual and specific case.
- In relation to standing to sue in suits for revocation, the Administrative Litigation Act provides that a suit may be filed by a person who has a legal interest in seeking revocation of a disposition, etc. and, in a case where the effect of a disposition, etc. has been extinguished due to the passage of time, execution of disposition, etc. or for any other reason, a person who has a legal interest that would be reinstated by the revocation of such disposition, etc. (Article 12 of the Administrative Litigation Act).
Standing to Sue in Suits for Affirmation of Nullity, etc.
- A suit for affirmation of nullity etc. may be filed by a person who has a legal interest in seeking the affirmation of the validity or nullity, or the existence or non-existence, of a disposition etc. (Article 35 of the Administrative Litigation Act).
· “Legal interest” for these purposes has the same meaning as the meaning given to the like term in relation to a suit for revocation.
Standing to Sue in Suits for Affirmation of Illegality of Omission
- A suit for affirmation of illegality of omission may be filed only by a person who, as a person who has applied for a disposition, has a legal interest in seeking the affirmation of the illegality of an omission (Article 36 of the Administrative Litigation Act).
· In a suit for affirmation of illegality of omission, only a person who has applied for a disposition is deemed to have standing to sue. A third party who has not applied for a disposition is deemed not to have standing to sue.
· “Legal interest” for these purposes has the same meaning as the meaning given to the like term in relation to a suit for revocation.
Standing to Sue in Party Suits
- As a suit concerning legal relationships based on an administrative agency's disposition, etc. and other legal relationships in public law, a party suit is a suit between parties of equal status. Therefore, there is no restriction on standing to sue as in the case of an appeals suit, and the provisions on general civil litigation regarding standing to sue apply mutatis mutandis (Article 8 (2) of the Administrative Litigation Act).
Standing to Sue in Public Suits and Agency Suits
- In relation to public suits and agency suits, a suit may be filed only by persons specified in statutes, in the circumstances specified in statutes (Article 45 of the Administrative Litigation Act).
Eligibility to Stand as Defendant
Eligibility to Stand as Defendant in Appeals Suits
- The defendant in an appeals suit is, unless there are specific provisions in other statutes, the administrative agency which had made the disposal, etc. (The main body of Article 13 (1) of the Administrative Litigation Act).
- However, if, after the disposition, etc., the authority relating to such disposition, etc. is transferred to another administrative agency, then the administrative agency that has taken on the authority is the defendant (Proviso to Article 13 (1) of the Administrative Litigation Act).
- If an administrative agency constituting the defendant does not exist, then the defendant is the State or a public organization, to whom affairs relating to such disposition, etc. have reverted (Article 13 (2) of the Administrative Litigation Act).
- Examples where provisions are made under other statutes regarding eligibility to stand as defendant:
· in an administrative lawsuit concerning disciplinary action, etc. against a public official, the defendant is the following: in relation to a disposition, etc. of the President, it is the Minister of the Ministry of which the relevant official is an employee; and in relation to a disposition, etc. by the Chairperson of the National Election Commission, it is the Secretary General of the National Election Commission (Article 16 (2) of the State Public Officials Act );
· in an administrative lawsuit concerning disciplinary action, disposition of leave of absence, dismissal from work, and other adverse dispositions against intention against a police official, the defendant is either the Commissioner General of Korean National Police Agency or the Commissioner General of Korea Coast Guard, provided that if the authority of appointment has been delegated, the defendant is the person with such delegated authority (Article 34 of the Police Officers Act);
· In an administrative lawsuit concerning a disposition by the Speaker of the National Assembly, the defendant is the Secretary General (Article 4 (3) of the National Assembly Secretariat Act).
Eligibility to Stand as Defendant in Party Suits
- The defendant in a party suit is the State, public organizations, and other holders of rights (Article 39 of the Administrative Litigation Act).
Eligibility to Stand as Defendant in Public Suits and Agency Suits
- The position on a public suit and agency suit depends on what is specified in individual statutes.
Correction of Designation of Defendant
- If the plaintiff has incorrectly designated the defendant, he/she may apply to correct the designation of the defendant. In this case, the court may, by making a decision in accordance with the plaintiff's application, permit the correction of designation of the defendant (Article 14 (1) of the Administrative Litigation Act).
※ A “correction of designation of the defendant” is the substitution of the defendant in circumstances where the defendant designated by the plaintiff at the time of filing the suit is not a person suitably qualified to stand as a defendant and, provided that certain requirements are made, a person who is suitably qualified is substituted as the defendant.
- If, after the administrative lawsuit has been filed, authority is transferred to another administrative agency or the defendant administrative agency ceases to exist, then the court, either at the application of the relevant party or using its own authority, corrects the designation of the defendant (Article 14 (6) of the Administrative Litigation Act).
- If there is a correction of designation of the defendant, the suit against the new defendant is deemed to have been filed at the time when the suit was initially filed, and the suit against the former defendant is deemed to have been withdrawn (Article 14 (4) through to (6) of the Administrative Litigation Act).
Intervenor
Intervention in Litigation by Third Parties
- If there is a third party whose rights or interests would be infringed depending on the outcome of a lawsuit, the court may decide to allow that third party to intervene in the suit, either at the application of the parties to the suit or of the third party, or using its own authority (Article 16 (1) of the Administrative Litigation Act).
· When the court is deciding on an intervention in a suit by a third party, it shall obtain in advance the opinion of the parties to the suit and of the third party (Article 16 (2) of the Administrative Litigation Act).
· A third party who has applied to intervene in a suit may raise an immediate appeal against a decision to dismiss such an application without prejudice (Article 16 (3) of the Administrative Litigation Act).
※ An “immediate appeal” is an appeal which must be raised within one week of the date of notification of the judgment. This is due to the need to swiftly resolve the appeal, which is an independent and simple appeal against a decision or order that constitutes a judgment other than an adjudication (Article 444 of the Civil Procedure Act).
· Where a third party intervenes in a suit, in the case of a joint litigation where the objective of a suit is to be decided by all joint litigants in unison, an act of litigation carried out by one person takes effect only for the benefit of all joint litigants (Article 16 (4) of the Administrative Litigation Act and Article 67 (1) of the Civil Procedure Act).
Intervention in Litigation by Administrative Agencies
- If the court deems it necessary to allow another administrative agency to intervene in the suit, it may decide to allow that administrative agency to intervene in the suit, either at the application of the parties to the suit or of the relevant administrative agency, or using its own authority (Article 17 (1) of the Administrative Litigation Act).
- When the court is deciding on an intervention in a suit by an administrative agency, it shall obtain the opinion of the parties to the suit and of the relevant administrative agency (Article 17 (2) of the Administrative Litigation Act).
Attorney
Attorney
- As in civil litigation, attorneys are recognized in administrative litigation and, in this regard, provisions of the Civil Procedure Act on attorneys apply mutatis mutandis (Article 8 (2) of the Administrative Litigation Act).
- Therefore in principle, save for agents who may conduct advocacy pursuant to individual statutes, no person may become an attorney other than attorneys-at-law (Article 87 of the Civil Procedure Act).
- If, on the other hand, the defendant is the State, the Minister of Justice becomes the representative of the State. In relation to a local government, the head of the relevant local government becomes its representative (Article 2 of the Act on Litigation to which the State is a Party).