ENGLISH
Administrative Litigation
Period for Filing Lawsuit
Period for Filing Lawsuit- A “period for filing lawsuit” is a time period in which the party subject to a disposition, etc. or a third party may lawfully file a lawsuit.
- Whether an administrative lawsuit has been filed within the period for filing lawsuit, as a requirement for litigation, falls among the matters to be investigated by the court ex officio.
- Therefore, once a suit is filed, the court conducts an assessment as to whether the period for filing lawsuit has been complied with and, if is unlawful, dismisses the suit without prejudice.
- Time limits on the period for filing lawsuit are in principle only applicable to suits for revocation, and are not applicable to suits for affirmation of nullity, etc. (Article 38 (1) of the Administrative Litigation Act).
- A suit for revocation must be filed within 90 days of the date on which there is awareness of the disposition, etc., and may not be filed once a period of one year has passed from the date of the disposition, etc. (Article 20 of the Administrative Litigation Act).
- Since the above periods of 90 days and one year are not optional, an administrative lawsuit may not be filed once either one of these periods have been exceeded.
90 Days from Date on Which There is Awareness of Disposition If the Case Has Not Gone Through Administrative Appeal- A suit for revocation shall be filed within 90 days of the date on which there is awareness of the disposition, etc. (The main body of Article 20 (1) of the Administrative Litigation Act).
- The “date on which there is awareness of the disposition, etc.”, as the starting point for counting the period for filing lawsuit, is the date on which the relevant disposition, etc. takes effect.
※ In the case of a written notification, this is the date on which the document reaches the other party.
※ In the case of service by public notice, this is the date on which the document is deemed to reach the other party.
※ In the case of a factual action, this is the date on which the party becomes aware of the conduct of the act and that it is infringing on his/her rights and interests.
- However, where as a matter of social norm the relevant party is in a position to be capable of finding out about the disposition, for example, because documentation setting out the disposition has been served on the party's address, then, save where there is contrary evidence, the party is presumed to have become aware of the disposition (Supreme Court Decision, August 27, 2002, 2002 Du 3850).
If the Case Has Gone Through Administrative Appeal- If in any one of the below circumstances an administrative appeal is filed, the applicable period for filing lawsuit is 90 days from the date of receiving service of an authenticated copy of the written ruling (Proviso to Article 20 (1) of the Administrative Litigation Act):
· if there is a provision in another statute stating that a suit for revocation may not be filed without first obtaining a ruling on administrative appeal in respect of the relevant disposition;
· other cases where administrative appeal may be filed; or
· if the administrative agency has incorrectly notified that administrative appeal may be filed.
- The “date of receiving service of an authenticated copy of the written ruling” is not limited to the date on which the authenticated copy of the written ruling is received in person by the relevant party, but also includes all cases where there has been lawful service in accordance with the provisions of the Civil Procedure Act, such as supplementary service, service by leaving and service by public notice (Articles 38 and 41 of the Administrative Litigation Act).
One Year from Date of Disposition If the Case Has Not Gone Through Administrative Appeal- A suit for revocation may not be filed once a period of one year has passed from the date of the disposition, etc. (Article 20 (2) of the Administrative Litigation Act).
- The “date of the disposition” in relation to an administrative disposition directed at another party is, in the absence of a special provision, the date on which such administrative disposition is notified to that other party in accordance with general legal principles on the expression of will (Supreme Court Decision, July 13, 1990, 90 Nu 2284).
If the Case Has Gone Through Administrative Appeal- In the below circumstances, the period for filing lawsuit where an administrative appeal is filed is one year from the date of the ruling (Article 20 (2) of the Administrative Litigation Act):
· if there is a provision in another statute stating that a suit for revocation may not be filed without first obtaining a ruling on administrative appeal in respect of the relevant disposition;
· other cases where administrative appeal is possible; or
· if the administrative agency has incorrectly notified that administrative appeal may be filed.
- The “date of the ruling” is not the date on which the ruling is formed internally, but rather is the date on which the ruling takes effect (Supreme Court Decision, July 13, 1990, 90 Nu 2284).
· Since a ruling on an administrative appeal takes effect when an authenticated copy of the written ruling is served on the appellant, ultimately the “date of the ruling” is the date of service of an authenticated copy of the written ruling (Article 38 of the Administrative Appeals Act).
If There Are Legitimate Grounds- If there are legitimate grounds, a suit for revocation may be filed, whether or not it has first been through an administrative appeal, even if the period of one year has passed (Proviso to Article 20 (2) of the Administrative Litigation Act).
- Since legitimate grounds constitute an indeterminate concept, whether legitimate grounds exist is judged by aggregating various circumstances, such as the reason for exceeding the period for filing lawsuit, and considering whether it would be reasonable as a matter of social norm to permit the delayed filing.
Invariable Period Invariable Period- Since the period for filing a suit for revocation is an invariable period, the court may not extend or reduce the period (Article 20 (3) of the Administrative Litigation Act).
- However, an additional period may be specified for a person who is in a remote location, and, if the invariable period was not complied with due to causes for which the relevant party cannot be held liable, then the delayed act of litigation may subsequently be completed within two weeks of the cessation of the relevant cause (Article 8 (2) of the Administrative Litigation Act and Articles 172 (2) and 173 of the Civil Procedure Act).
- Where the act of litigation is being carried out from abroad, however, it may subsequently be completed within 30 days (Article 5 of the Administrative Litigation Act).
Method for Calculating Time Periods Starting Point for Counting Time Period- If the time period is specified in days, weeks, months or years, the first day of that period is not counted; provided that, if the time period is starts from 0:00 AM, then the first day of that period is counted (Article 157 of the Civil Act).
Expiry Point of Time Period- If the time period is specified in days, weeks, months or years, the period expires at the end of the final day of that period, or if the final day of the time period is a Saturday or a public holiday, then the period ends on the day after the final day (Articles 159 and 161 of the Civil Act).
Exceptions to Period for Filing Lawsuit Suit for Affirmation of Nullity, etc.- In the case of a suit for affirmation of nullity, etc., since there is no time limit on the period for filing lawsuit, a suit may be filed at any time (Article 38 of the Administrative Litigation Act).
If There Are Special Provisions in Other Statutes- In the case of tax litigation
· In a lawsuit concerning a disposition under various tax statutes, the case must first go through a request for examination or request for adjudication as provided for under the Basic Act on National Taxes or the Customs Act. In this case the administrative lawsuit shall be filed within 90 days of obtaining the final decision (Article 56 (3) of the Basic Act on National Taxes and Article 120 (5) of the Customs Act).
· It is possible to file a lawsuit in relation to a disposition under a tax statute directly by going through a request for examination pursuant to the Board of Audit and Inspection Act, without going through a request for examination or request for adjudication as provided for under the Basic Act on National Taxes or the Customs Act. Likewise in this case the administrative lawsuit shall be filed within 90 days of receiving a decision notice concerning the request for examination (Article 56 (5) of the Basic Act on National Taxes and Article 120 (6) of the Customs Act).
- Lawsuits Concerning Land Expropriation Rulings
· Where there is dissatisfaction with an expropriation ruling of a Local Land Tribunal or the Central Land Tribunal pursuant to the Act on Acquisition of and Compensation for Land, etc. for Public Works an administrative lawsuit may be filed within 90 days of the date of receiving the written ruling or, if an objection has first been raised, within 60 days of the date of receiving a written ruling in respect of the objection (Article 85 (1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works).
- Lawsuits Concerning Disposition and Retrial by the National Labor Relations Commission
· A lawsuit concerning a disposition or retrial by the National Labor Relations Commission shall be filed within 15 days of the date of receiving service of the disposition or the written retrial decision (Article 27 of the Labor Relations Commission Act and Article 85 (2) of the Trade Union and Labor Relations Adjustment Act).
- Lawsuits Concerning Disciplinary Actions Against Teachers
· A lawsuit concerning a decision of the Appeal Committee for Teachers shall be filed within 90 days of the date of receiving service of the written decision (Article 10 (3) of the Special Act on the Improvement of Teachers’ Status and the Protection of their Educational Activities).
- Lawsuits Concerning Disposition by Fair Trade Commission
· Where a lawsuit is to be fileddue to dissatisfaction with a disposition by the Fair Trade Commission pursuantto the Monopoly Regulation and Fair Trade Act, the lawsuit shall be filed inthe Seoul High Court within 30 days of the date of receiving a notice of theFair Trade Commission’s disposition of the x-objection raised or the originalcopy of the written decision of the objection raised (Articles 99(1)and 100 of the Monopoly Regulation and Fair Trade Act).
- Other Cases
· Where a person who has received a decision of the Minister of Justice pursuant to the Security Surveillance Act has an objection to the decision, a lawsuit may be filed in the Seoul High Court, in accordance with the provisions of the Administrative Litigation Act, within 60 days of the date of execution of the decision; provided that, where a person who has received a dismissal decision on an application for exemption made in respect of a security surveillance disposition has an objection to that decision, a lawsuit may be filed within 60 days of the date of the decision (Article 23 of the Security Surveillance Act).
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