Appellant
Appellant
- An “appellant” is a person who is dissatisfied with a disposition, etc. that is subject to an appeal, and who has requested an administrative appeal in respect of such disposition. This is not necessarily limited to the person subject to the disposition; a third party can be an appellant.
Standing to Appeal
- “Standing to appeal”, in relation to a particular administrative appeal, is a qualification that makes it suitable for a person, as an appellant, to request an administrative appeal and obtain a ruling in respect of it.
- The proper party to an administrative appeal is the person who has a legal interest in the affirmation of the illegality or injustice of a particular disposition that is subject to an administrative appeal.
Requirements for Standing to Appeal
- In the case of an appeal for revocation, a person who has a legal interest in seeking revocation or modification of the disposition may request an administrative appeal (Former part of Article 13 (1) of the Administrative Appeals Act).
· However, in the case of an appeal for revocation, even if the effect of a disposition has been extinguished due to the passage of time, execution of disposition, or for any other reason, a person who has a legal interest that would be reinstated by the revocation of the disposition may request an administrative appeal (Latter part of Article 13 (1) of the Administrative Appeals Act).
- In the case of an appeal for affirmation of nullity, etc., a person who has a legal interest in seeking affirmation of the disposition's validity or nullity, or its existence or non-existence, may request an administrative appeal (Article 13 (2) of the Administrative Appeals Act).
- In the case of an appeal for performance of obligation, a person who has a legal interest in seeking a certain disposition in respect of the administrative agency's refusal or omission may request an administrative appeal (Article 13 (3) of the Administrative Appeals Act).
Appointment of Agent
- The appellant may appoint an agent to act on his/her behalf in relation to the relevant appeal.
- The appellant may appoint as his/her agent a person who falls under one of the following paragraphs (Article 18 (1) of the Administrative Appeals Act):
· a legal representative;
· the appellant’s spouse, or a relative of the appellant or his or her spouse who is no more distant than a first cousin;
· if the appellant is a corporation, or an unincorporated association or foundation with standing to appeal, then its officers and employees;
· an attorney at law;
· a person who may, pursuant to other statutes, act as an agent in the appeal; or
· other persons who have obtained permission from the administrative appeals commission.
- An agent may carry out all acts for the appellant in connection with the relevant case. However, the appellant’s consent is needed to withdraw an appeal, and in such a case the fact that consent has been obtained shall be explained in writing (Article 18 (3) and Article 15 (3) of the Administrative Appeals Act).
- The appellant may, if he/she deems it necessary, discharge or substitute his/her agent (Article 18 (3) and Article 15 (5) of the Administrative Appeals Act).
- If the appellant is unable to appoint an agent due to his/her financial means, then as a person who falls under one of the following paragraphs the appellant may apply to the commission for the appointment of an state-appointed agent (Article 18-2 (1) of the Administrative Appeals Act, Article 16-2 (1) and (2) of the Enforcement Decree of the Administrative Appeals Act:
· a recipient pursuant to Subparagraph 2 of Article 2 of the National Basic Living Security Act;
· a person eligible for support under Article 5 and Article 5-2 of the Single-Parent Family Support Act;
· a recipient of a basic pension pursuant to Subparagraph 3 of Article 2 of the Basic Pension Act;
· a recipient pursuant to Subparagraph 4 of Article 2 of the Act on Pensions for Persons with Disabilities;
· a person to be protected pursuant to Subparagraph 2 of Article 2 of the North Korean Refugees Protection and Settlement Support Act; or
· other person deemed by the chairperson as being unable to appoint a representative due to his/her financial means.
- The commission shall, in relation to the above application, make a decision on the appointment of a state-appointed agent and notify the appellant of the outcome without delay (Former part of Article 18-2 (2) of the Administrative Appeals Act).
Appellee
Eligibility to Stand as Appellee
- The request for an administrative appeal shall be made by designating the administrative agency that has made the disposal (in the case of an appeal for performance of obligation, the administrative agency that has received the appellant’s application) as the appellee (The main body of Article 17 (1) of the Administrative Appeals Act).
· However, if the authority relating to the subject matter of the appeal has been transferred to another administrative agency, then the administrative agency which has taken on such authority shall be designated as the appellee (Proviso to Article 17 (1) of the Administrative Appeals Act).
Correction of Designation of Appellee
- If the appellant has incorrectly designated the appellee, the administrative appeals commission may, ex officio or at the application of the relevant party, correct the designation of the appellee (Article 17 (2) of the Administrative Appeals Act).
- In the event that the administrative appeals commission decides to correct the designation of the appellee pursuant to the above, an authenticated copy of the decision shall be sent to the relevant parties (including the former appellee and the newly designated appellee) (Article 17 (3) of the Administrative Appeals Act).
- If there is a decision to correct the designation of the appellee, the appeal against the former appellee is deemed to be withdrawn, and an administrative appeal is deemed to have been filed against the newly designated appellee at the time when the administrative appeal was made against the former appellee (Article 17 (4) of the Administrative Appeals Act).
- If, after the administrative appeal has been filed, another administrative agency succeeds to the position of the appellee, then the administrative appeals commission, either ex officio or at the application of the relevant party, corrects the designation of the appellee (Article 17 (5) of the Administrative Appeals Act).
Appointment of Agent
- The appellee in an administrative appeal may appoint an agent to act on its behalf in relation to the relevant appeal.
- The appellee may appoint as its agent a person who falls under one of the following paragraphs (Article 18 (2) of the Administrative Appeals Act):
· an attorney at law;
· a person who may, pursuant to other statutes, act as an agent in the appeal; or
· other persons who have obtained permission from the administrative appeals commission.
- An agent may carry out all acts for the appellee in connection with the relevant case. However, the appellant’s consent is needed to withdraw an appeal, and in such a case the fact that consent has been obtained shall be explained in writing (Article 18 (3) and Article 15 (3) of the Administrative Appeals Act).
- The party who has appointed an agent may, if it deems it necessary, discharge or substitute the appointed agent (Article 18 (3) and Article 15 (5) of the Administrative Appeals Act).
Intervention in Appeals
Intervenor (Interested Party)
- An act of intervention in the case by a third party or administrative agency who has an interest in the outcome of the appeal, is called “intervention in appeals”. The person or agency who intervenes is called the “intervenor”.
- The system for intervention in appeals, by enabling interested parties to participate in the appeal procedure, not only promotes an appropriate and fair review, but also has as its purpose the protection of the rights and interests of interested parties.
※ Interested parties include not only a person who has an interest in the relevant disposition itself, but also any person who would suffer a detriment depending on the terms of the ruling.
Intervention by Permission
- Meaning
· A third party or administrative agency who has an interest in the outcome of an administrative appeal may intervene in the appeal until the administrative appeals commission decides on the relevant administrative appeal (Article 20 (1) of the Administrative Appeals Act).
- Application
· A person who wishes to intervene shall submit to the administrative appeals commission a written application setting out the purpose of and reason for the intervention. In such a case the applicant shall also submit as many copies of the application as there are parties (Article 20 (2) of the Administrative Appeals Act).
· Upon receiving a written application for intervention, the administrative appeals commission sends copies of the application to the parties, and may set a time period for the other parties and any other intervenor to submit their opinion on the third party’s application for intervention. If the parties and other intervenors do not submit their opinion within this time period, they are deemed not to have an opinion on the matter (Article 20 (3) and (4) of the Administrative Appeals Act).
- Permission
· Upon receiving an application for intervention, the administrative appeals commission shall make a decision on whether to permit it and, without delay, send an authenticated copy of the decision to the applicant and a certified copy to each of the parties and other intervenors (Article 20 (5) of the Administrative Appeals Act).
- Objections
· The applicant may, within seven days of the date of receiving service of an authenticated copy of the decision on permission, raise an objection with the administrative appeals commission (Article 20 (6) of the Administrative Appeals Act).
Intervention on Request
- The administrative appeals commission may, if it deems it necessary, request a third party or administrative agency who has an interest in the outcome of the administrative appeal, to intervene in the appeal of the relevant case (Article 21 (1) of the Administrative Appeals Act).
- The third party or administrative agency which has received the administrative appeals commission's request, shall notify the commission without delay as to whether it intends to intervene in the appeal of the relevant case (Article 21 (2) of the Administrative Appeals Act).
Status of Intervenor
- An intervenor may carry out the procedural acts which may be carried out by a party in the course of an administrative appeal (Article 22 (1) of the Administrative Appeals Act).
- When any of the parties submits documentation to the administrative appeals commission, it shall submit as many copies as there are intervenors. When the administrative appeals commission sends notification or documentation to the parties, it shall also send it to the intervenors (Article 22 (2) of the Administrative Appeals Act).
Parties’ Rights
Right to Apply to Challenge Commission Member or Employee
- A party to the appeal may, if it is difficult to expect a fair review and decision from a member of the administrative appeals commission, apply to challenge the member (Article 10 (2) of the Administrative Appeals Act).
- Upon receiving an application for challenge, the chairperson of the administrative appeals commission shall make a decision as to the challenge and, without delay, send an authenticated copy of the decision to the applicant (Article 10 (6) of the Administrative Appeals Act).
Right to Submit Supplementary Documentation
- A party to the appeal may, if it is necessary to supplement the facts argued in the written appeal, written correction, written answer or the written application for intervention, or to rebut other parties’ arguments, submit supplementary documentation to the administrative appeals commission (Article 33 (1) of the Administrative Appeals Act).
- If the administrative appeals commission has set a time limit on the submission of supplementary documentation, submission shall be made within that time limit (Article 33 (2) of the Administrative Appeals Act).
Right to Request Oral Review
- A party to the appeal may make a request to the administrative appeals commission for an oral review (Proviso to Article 40 (1) of the Administrative Appeals Act).
Right to Submit Evidence
- A party to the appeal may submit documentary evidence or articles of evidence to the administrative appeals commission to support its arguments (Article 34 (1) of the Administrative Appeals Act).
Right to Request Examination of Evidence
- A party to the appeal may, if it is necessary to support its claims, request the administrative appeals commission to conduct an examination of evidence, including a questioning of a party or related persons, or a request for submission, appraisal, investigation or verification of evidence (Article 36 (1) of the Administrative Appeals Act).