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Subject Matter of Administrative Appeals

Subject Matter of Administrative Appeals

- The Administrative Appeals Act provides that, except as specifically provided for in other statutes, administrative appeals may be requested in respect of an administrative agency's disposition or omission in accordance with that Act. In doing so, the Act specifies that the subject matter of administrative appeals is an ‘administrative agency's illegal or unjust disposition or omission’ (Article 3 (1) of the Administrative Appeals Act).

Administrative Agencies

Meaning of Administrative Agencies

- An “administrative agency” is an agency of the State or local government which makes and indicates administrative decisions, and any other public organization or its organ, or a private individual, which has or has been entrusted with administrative authority pursuant to statutes or municipal ordinances (Subparagraph 4 of Article 2 of the Administrative Appeals Act).

- A public corporation and a public facilities agency may, within the limits of their authority, also be an administrative agency.

· For example, Korea Land and Housing Corporation takes on the status of an administrative agency in respect of the act of selecting persons subject to relocation measures implemented pursuant to the Act on Acquisition of and Compensation for Land, etc. for Public Works, and Korea Labor Welfare Corporation takes on the status of an administrative agency in respect of the act of imposing an industrial accident compensation insurance premium pursuant to the Industrial Accident Compensation Insurance Act.

- The courts or the National Assembly are also included as administrative agencies to the extent they take administrative measures.

· For example, in respect of matters such as disciplinary actions taken against employees of the National Assembly or the courts, or the Chief Judge's authorization of the establishment of a joint corporation of certified judicial scriveners, the courts or the National Assembly take on the status of an administrative agency.

Transfer of Authority

- In principle, the administrative agency in an administrative appeal refers to the administrative agency which has made the relevant disposal or omission. However, if, after the disposition or omission, the authority relating to such disposition or omission is transferred to another administrative agency, then the administrative agency that has taken on the authority becomes the appellee (Article 17 (1) of the Administrative Appeals Act).

Disposition

Meaning of Disposition

- The Administrative Appeals Act defines a disposition subject to an administrative appeal as 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 of the Administrative Appeals Act).

Execution of Law in Relation to Specific Set of Facts

- “Execution of the law in relation to a specific set of facts” is an act which is directly related to the citizens’ rights and obligations, such as an act which, in relation to a particular matter, establishes a right pursuant to law, imposes obligation, or which creates other legal effect. Therefore, an act which does not cause a direct legal change to the legal status of the citizens or other related persons to whom it is directed, is not a disposition subject to an administrative appeal (refer to the Supreme Court’s Decision dated October 22, 1999, Case No. 98Du18435).

Exercise of Public Power or its Refusal

- An “exercise of public power or its refusal” is an act of an administrative agency exerting its power from a superior position.

Other Equivalent Administrative Actions

- An act of an administrative agency, even if it is not an exercise of public power or its refusal, is a disposition subject to an administrative appeal if it is an external act that has a specific effect on an individual’s rights and interests.

Omission

Meaning of Omission

- An “omission” is an administrative agency’s failure to dispose of an application made by the relevant party, despite having a legal obligation to dispose of it in a certain manner within a reasonable time period (Subparagraph 2 of Article 2 of the Administrative Appeals 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 a certain administrative disposition.

- 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 dispose of the application 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.

· Legal obligation includes obligations pursuant to express provisions, as well as any obligations deemed to exist as a matter of statutory interpretation (Supreme Court’s Decision dated February 11, 1991, Case No. 90Nu5825).

- The administrative agency must have failed to take any action in disposing of the application

· A lawsuit for affirmation of illegality of omission is permitted in cases where there is no disposition at all. Insofar as there has been a disposition, it cannot be subject to a lawsuit for affirmation of illegality of omission, even if the disposition, like an administrative disposition that is void, never took effect due to a serious and manifest defect (Supreme Court’s Decision dated December 11, 1990, Case No. 90Nu4266).

Exceptions

Exceptions

- Even though a disposition or omission of an administrative agency is subject to an administrative appeal, no administrative appeal may be filed against the President’s disposition or omission, save where an administrative appeal is provided for in other statutes (Article 3 (2) of the Administrative Appeals Act).

- If a ruling is made in respect of an administrative appeal, no further administrative appeal may be filed against such ruling and any dispositions or omissions that are the same (Article 51 of the Administrative Appeals Act).

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