Administrative Appeal Before Litigation
Administrative Appeal Before Litigation
- An administrative lawsuit may be filed, even in a case where an administrative appeal may be filed, without having to first go through an administrative appeal (Article 18 (1) of the Administrative Litigation Act).
- However, if other statutes contain a provision that a suit for revocation may not be filed in respect of the relevant disposition without first going through an administrative appeal, then an administrative lawsuit may only be filed by first going through an administrative appeal (Proviso to Article 18 (1) of the Administrative Litigation Act).
- The principle of ‘administrative appeal before litigation’ is adopted by other statutes in the following cases:
· disciplinary actions against and other unfavorable dispositions in respect of public officials (Article 16 of the State Public Officials Act, Article 53 of the Educational Officials Act and Article 20-2 of the Local Public Officials Act);
· dispositions under various tax statutes (Article 56(2) of the Framework Act on National Taxes, Article 98(3) of the Framework Act on Local Taxes, and Article 120(2) of the Customs Act); and
· dispositions such as revocation or suspension of a driver’s license (Article 142 of the Road Traffic Act).
- Even where the other statutes adopt the principle of ‘administrative appeal before litigation’, an administrative lawsuit may be filed after filing an administrative appeal without first obtaining a ruling, if the following grounds exist (parts of Article 18 (2) of the Administrative Litigation Act, other than the Subparagraphs):
· where 60 days pass from the filing date of an administrative appeal without a ruling being made;
· where there is an urgent need to prevent a serious harm that would result from the execution of the disposition or the continuation of procedures;
· where there are grounds which would mean the administrative appellate body under the statutory provisions is unable to make a decision or ruling; or
· where other legitimate grounds exist.
√ Instances of "other legitimate grounds" include situations in which achieving the claim's intended purpose becomes challenging if the plaintiff opts for an administrative appeal due to timing constraints or other compelling reasons (Supreme Court Decision, April 15, 1953, 4285 Haengsang 11).
- In addition, even in cases where the principle of ‘administrative appeal before litigation’ is adopted in other statutes, a suit for revocation may be filed directly without going through an administrative appeal, on any one of the following grounds (Article 18 (3) of the Administrative Litigation Act):
· where a dismissal ruling has already been made in an administrative appeal for the case of the same kind;
· where a ruling in an administrative appeal has already been made in respect of either a disposition that is interrelated due to its substance or a disposition that is being phased in for the same purpose;
· where, after the closing of pleadings in fact-finding proceedings, the administrative agency modifies the disposition that is being litigated and a lawsuit is filed in respect of that modified disposition; or
· where the administrative agency that has made the disposal has provided incorrect information that there is no need to go through an administrative appeal.
- Where the principle of ‘administrative appeal before litigation’ has been adopted in other statutes, going through an administrative appeal is a requirement for the filing of an administrative lawsuit. Therefore, in such a case whether such an appeal has first been gone through falls among the matters to be investigated by the court ex officio.
· In this case, a suit for revocation which fails to comply with the requirement of ‘administrative appeal before litigation’ would be dismissed without prejudice as an unlawful suit.
· However, if after the filing of an administrative lawsuit the case goes through an administrative appeal before the closing of pleadings, then the failure of compliance with this requirement is deemed to have been cured(
Supreme Court Decision, April 28, 1987, 86 Nu 29).
· Where the principle of ‘administrative appeal before litigation’ has been adopted in other statutes, a suit for revocation of disposition and a suit for affirmation of illegality of omission may only be filed by first going through an administrative appeal. However, a suit for affirmation of nullity may be filed without first going through an administrative appeal.
Submission of Written Complaint
Drafting of Written Complaint
- Since a lawsuit is filed by submitting a written complaint to the court, a person who wishes to file a lawsuit shall first draft a written complaint (Article 8 (2) of the Administrative Litigation Act and Article 248 of the Civil Procedure Act).
Matters to be Entered in Written Complaint
- In a written complaint, the parties (plaintiff and defendant), legal representative, and the purpose and grounds of the claim shall be noted. The provisions on briefs shall apply to a written complaint mutatis mutandis (Article 8 (2) of the Administrative Litigation Act and Article 249 of the Civil Procedure Act).
· When drafting a written complaint, in principle only the disposing administrative agency is noted as the defendant, and the name or address of any natural person holding a position within such agency is not noted.
Form of Written Complaint
- Forms of written complaint are available in the public service center of a district court or the administrative court.
- Purpose of Claim
· The “purpose of a claim” refers to the holding in a judgment claimed by the plaintiff in the relevant suit, and is the concluding part of the grounds of the claim.
· The objective which the claimant wishes to achieve through the suit shall be expressed in detail, and matters such as its terms and scope shall be set out concisely and clearly.
· The purpose of a claim becomes the reference by which matters such as the calculation of the value of the claim, substantive jurisdiction, presence of benefit in appeal, ratio for allocating costs of the suit, and the scope of interruption of prescription, are determined.
- Sample Drafts of Purpose of Claim
· Suit claiming revocation of disposition involving dismissal: The disposition by the Defendant on 00.00.2000 involving dismissal of the Plaintiff is revoked. The costs of the suit are assessed against the Defendant.
· Suit claiming revocation of disposition involving removal: The disposition by the Defendant on 00.00.2000 involving removal of the Plaintiff is revoked. The costs of the suit are assessed against the Defendant.
· Revocation of disposition involving a ruling on objection to land expropriation, etc.: The disposition by the Defendant Central Land Tribunal on 00.00.2000 in respect of the Plaintiff, involving a ruling on the real estate set out in the attached list, is revoked. The costs of the suit are assessed against the Defendant.
· Suit claiming revocation of disposition involving non-payment of retirement benefit: The Defendant revokes its disposition on 00.00.2000, involving decision not to make payment, of the Plaintiff’s claim for retirement benefit. The costs of the suit are assessed against the Defendant.
· Suit claiming revocation of disposition involving imposition of special consumption tax: The disposition by the Defendant on 00.00.2000 involving imposition of special consumption tax of KRW 12,363,840 on the Plaintiff is revoked.The costs of the suit are assessed against the Defendant.
· Compensation for land expropriation: The Defendant shall pay to the Plaintiff KRW 80,000,000 and, in respect of such amount, an additional amount calculated, from 00.00.2000 until the date of handing down of judgment, at the rate of 5% per annum, and from the following day until the date of payment in full, at the rate of 20% per annum. The costs of the suit are assessed against the Defendant.
· Suit claiming increase in compensation for loss: The Defendant shall pay to the Plaintiff KRW 80,000,000 and, in respect of such amount, an additional amount calculated, from April 28, 2005 until the date of handing down of judgment, at the rate of 5% per annum, and from the following day until the date of payment in full, at the rate of 20% per annum. The costs of the suit are assessed against the Defendant.
- Grounds of Claim
· This refers to the facts, on the basis of which the right or the legal relations asserted by the plaintiff are established. The grounds of the claim shall be set out in specific terms so that the plaintiff’s claim in the suit may be distinguished from other claims, and drafted so that they do not cause confusion or misunderstanding.
Submission of Written Complaint
- A written complaint shall be submitted to the administrative court which has jurisdiction over the location of the defendant (Article 8 (2) of the Administrative Litigation Act and Article 248 of the Civil Procedure Act).
- Unless there are specific provisions in other statutes, the defendant is the administrative agency which had made the disposal, etc.
· Please note, a written complaint shall include a stamp for a certain amount depending on the value of the claim, and, after paying the service fee at the recipient bank established within the administrative court premises, a certificate of its payment.
※ Conducting Litigation via Electronic Documents
Documents to be submitted to the court may be submitted as electronic documents using an electronic data system (Subparagraph 3 of Article 3 and Article 5 (1) of the Act on the Use, etc. of Electronic Documents in Civil Litigation, Etc.).
A person who wishes to submit electronic documents to the court shall register as a user, and affix a digital signature on the electronic documents (Article 6 (1) and Article 7 (1) of the Act on the Use, etc. of Electronic Documents in Civil Litigation, Etc.).
An electronic document submitted using an electronic data processing system is deemed to be received when it is recorded electronically on the electronic data system (Article 9 (1) of the Act on the Use, etc. of Electronic Documents in Civil Litigation, Etc.).
Competent Court
Competent Court
- The plaintiff shall file his/her suit in the administrative court which has jurisdiction over the location of the defendant.
- In relation to the competent court, the Administrative Litigation Act provides that the administrative court which has jurisdiction over the location of the defendant shall have jurisdiction in a suit for revocation, and applies the provisions on suits for revocation mutatis mutandis in relation to jurisdiction in suits for affirmation of nullity, etc., suits for affirmation of illegality of omission and party suits (Article 38, Article 40 and Article 9 of the Administrative Litigation Act).
- However, the competent courts in a public suit and an agency suit are each prescribed in individual statutes (e.g. Article 107 of the Local Autonomy Act).
Choice of Jurisdiction
- In terms of jurisdiction at an instance, it is the administrative court at first instance. As with civil litigation, administrative litigation adopts a three-instance system, and filing shall be in the administrative court as the competent court of first instance in administrative litigation (Article 9 of the Administrative Litigation Act).
· In other words, in relation to a judgment of an administrative court, an appeal may be lodged in a high court, and in relation to a judgment of a high court, a final appeal may be lodged in the Supreme Court (Article 14 and Article 28 of the Court Organization Act).
· However, in the Seoul region the administrative court established under the Seoul District Court has jurisdiction, and in other regions where an administrative court has not been established, the relevant district court itself and Chuncheon District Court, Gangneung Branch, has jurisdiction until an administrative court is established [Subparagraph 6 of Article 3 and Article 40-4 of the Court Organization Act and Article 2 of Addenda to the Court Organization Act (Act No. 4765)].
- In terms of territorial jurisdiction, it is the administrative court which has jurisdiction over the location of the defendant. The competent court of first instance in administrative litigation is the administrative court which has jurisdiction over the location of the defendant; provided that, where the defendant is a central administrative agency, an affiliated organ and collegiate administrative agency of a central administrative agency, or a public organization which has been delegated or entrusted with the affairs of the State, or the head of such an organization, then an administrative lawsuit may be filed in the administrative court which has jurisdiction over the location of the Supreme Court (Article 9 (1) and (2) of the Administrative Litigation Act).
- An administrative lawsuit concerning a disposition, etc. relating to expropriation of land and other real estate or specific place, may be filed at the administrative court which has jurisdiction over the location of such real estate or place (Article 9 (3) of the Administrative Litigation Act).
Transfer of Jurisdiction
- The administrative court, if it deems that the whole or part of an administrative lawsuit which has been filed does not fall under its jurisdiction, transfers such a lawsuit, by its decision, to the competent court (Article 8 (2) of the Administrative Litigation Act and Article 34 (1) of the Civil Procedure Act).
- Furthermore, if an administrative lawsuit has been incorrectly filed in a court of different instance without any willfulness or gross negligence on the plaintiff’s part, such a lawsuit is also transferred, by the court’s decision, to the competent court (Article 7 of the Administrative Litigation Act and Article 34 (1) of the Civil Procedure Act).
Modification of Lawsuit
General Modification of Lawsuit
- The court may, if it deems that it would be reasonable to modify a suit for revocation into a party suit against the State or a public organization to whom affairs relating to the relevant disposition, etc. have reverted, or into an appeals suit other than a suit for revocation, permit a modification of the suit, by its decision at the plaintiff’s application, until the closing of pleadings in the fact-finding proceedings, provided that there is no modification to the foundation of the claim (Article 21 (1) of the Administrative Litigation Act).
· An immediate appeal may be raised against a decision on permission regarding a modification of a suit (Article 21 (3) of the Administrative Litigation Act).
Modification of Lawsuit Due to Modification of Disposition
- Where, after the filing of a lawsuit, the administrative agency has modified the disposition that is subject to the lawsuit, the court may, by its decision at the plaintiff’s application, permit a modification to the purpose or grounds of the claim (Article 22 (1) of the Administrative Litigation Act).
- If the plaintiff is applying to modify a lawsuit following the administrative agency’s modification of the disposition that is subject to the lawsuit, then this shall be done within 60 days of the date on which there is awareness of the modification of the disposition (Article 22 (2) of the Administrative Litigation Act).
Transfer and Consolidation of Lawsuits on Related Claims
Transfer and Consolidation of Lawsuits on Related Claim
- In a case where a suit for revocation and a lawsuit on a related claim are each pending in different courts, if deemed reasonable by the court in which the lawsuit on a related claim is pending, such a lawsuit may be transferred, ex officio or at the relevant party's application, to the court in which the suit for revocation is pending (Article 10 (1) of the Administrative Litigation Act).
- For these purposes, a “lawsuit on a related claim” refers to the following suits:
· a suit claiming matters such as compensation for damage, restitution of unjust enrichment, or reinstatement relating to the relevant disposition, etc.; or
· a suit for revocation relating to the relevant disposition, etc.
- When filing a suit for revocation, until the closing of pleadings in the fact finding proceedings such a suit may be consolidated with a lawsuit on a related claim or a lawsuit on a related claim against a person other than the defendant may be filed, via consolidation, in the court in which the suit for revocation is pending (Article 10 (2) of the Administrative Litigation Act).
Other Requirements for Filing Lawsuits
Absence of Judgment to Which
Res Judicata Applies
- If there is already a judgment in respect of the subject matter of the lawsuit (subject matter of dispute) between the litigants, to which res judicata applies, then no further litigation is permitted.
No Duplicative Filing of Lawsuit
- When a lawsuit is filed, the case is pending before the court such that the court is required to review and adjudicate the case, and the relevant parties may not file a suit again in respect of the same case (Article 8 (2) of the Administrative Litigation Act and Article 259 of the Civil Procedure Act).
No Filing of Lawsuit Again
- A person who has withdrawn a lawsuit after there has been a final judgment on the merits of the case may not bring the same lawsuit again (Article 8 (2) of the Administrative Litigation Act and Article 267 (2) of the Civil Procedure Act).