ENGLISH
Administrative Appeals
Meaning of Rulings
Meaning of Rulings- A “ruling” means a decision made by an administrative appeals commission in respect of an appeal filed against an administrative agency's disposition or omission (Subparagraph 3 of Article 2 of the Administrative Appeals Act).
Nature of Rulings- As an expression of an administrative appeals commission's will, rulings are quasi-judicial acts in nature.
Time Period for Making Rulings Time Period for Making Rulings- A ruling shall be made within 60 days of the date on which the administrative agency or the administrative appeals commission receives a written appeal. However, if there are circumstances beyond the commission’s control, the chairperson may ex officio extend the time period by 30 days (Article 45 (1) of the Administrative Appeals Act).
- If the time period for making a ruling has been extended due to circumstances beyond the commission’s control, the parties shall be informed of this no later than seven days before the expiry of the time period for making a ruling (Article 45 (2) of the Administrative Appeals Act).
- If the administrative appeals commission has ordered a correction to be made to the appeal, the time period for correction is not included in the time period for ruling (Article 32 (5) of the Administrative Appeals Act).
Method of Ruling In Writing- A ruling is made in writing (Article 46 (1) of the Administrative Appeals Act).
- The administrative appeals commission shall set out the following matters on the written ruling (Article 46 (2) of the Administrative Appeals Act):
· case number and case name;
· name and address of the parties, representatives or agents;
· main text of the ruling;
· purpose of the appeal;
· reasoning; and
· date of the ruling.
Reasoning for Rulings- A written ruling shall include its reasoning (Subparagraph 5 of Article 46 (2) of the Administrative Appeals Act).
- The reasoning set out in a written ruling shall indicate a level of judgment such that one is able to accept that the main text of the ruling is justified (Article 46 (3) of the Administrative Appeals Act).
Scope of Rulings Scope of Rulings- The administrative appeals commission may not rule on matters other than the disposition or omission that is being appealed (Article 47 (1) of the Administrative Appeals Act).
- The administrative appeals commission may not make a ruling that is more disadvantageous to the appellant than the disposition that is being appealed (Article 47 (2) of the Administrative Appeals Act).
Service and Public Announcement of Rulings Service of Rulings- If a ruling has been made, the administrative appeals commission shall serve authenticated copies of the written ruling to the parties without delay, and the ruling takes effect when it has been served on the appellant (Article 48 (1) and (2) of the Administrative Appeals Act).
- Certified copies of the ruling are served on any intervenors in the appeal (Article 48 (3) of the Administrative Appeals Act).
- In a case where an appeal has been filed by a third party who is not a party subject to the disposition, a certified copy of the ruling is also served on the third party (Article 48 (4) of the Administrative Appeals Act).
Public Announcement- If a disposition for which a public announcement or notification has been made pursuant to statutory provisions is revoked or modified by a ruling, the relevant administrative agency that has made the disposal shall without delay make a public announcement or notification that the disposition has been revoked or modified (Article 49 (5) of the Administrative Appeals Act).
Notification- If a disposition which has been notified to an interested party other than the party subject to the disposition is revoked or modified by a ruling, the administrative agency that has made the disposal shall without delay inform the interested party of the disposition's revocation or modification (Article 49 (6) of the Administrative Appeals Act).
Categories of Rulings Dismissal Without Prejudice Ruling- A “dismissal without prejudice ruling” is a decision of the administrative appeals commission which refuses a review on the merits on the grounds that, having reviewed the appeal on the requirements, the appeal does not meet the requirements for an appeal and is therefore unlawful (Article 43 (1) of the Administrative Appeals Act).
- The main text of the ruling in the written ruling would state: ‘The instant appeal shall be dismissed without prejudice.’
- An appeal is dismissed without prejudice as being unlawful in the following circumstances:
· if a person who is unable to appeal has filed an appeal;
· if the subject matter of the appeal is not an administrative disposition;
· if the appeal has been filed after the expiry of the time period for an appeal;
· if there is a deficiency in the information required to be stated in an appeal; or
· if the written appeal does not attach documents evidencing a person's capacity to act as a representative, manager or agent.
- However, if an entry in the written appeal is omitted or documentary evidence for a person's capacity to act as a representative, etc. is not attached, then a correction in relation to the requirements is possible. If a correction is made, the administrative appeal is deemed to have been filed lawfully from the beginning (Article 32 (1) and (4) of the Administrative Appeals Act).
Dismissal Ruling- A “dismissal ruling” is a decision of the administrative appeals commission which, after reviewing the appeal on the merits, rejects the matters requested by the appellant and upholds the administrative agency’s original disposition (Article 43 (2) of the Administrative Appeals Act).
- The main text of the ruling in the written ruling would state: ‘The appellant’s appeal shall be dismissed.’
Acceptance Rulings- An “acceptance ruling” is a decision of the administrative appeals commission which recognizes the illegality or injustice of the appellee’s disposition or omission, and accepts the matters applied for by the appellant (Article 43 (3), (4) and (5) of the Administrative Appeals Act).
- Depending on the appeal that has been filed, acceptance rulings are categorized as revocation or modification rulings, affirmation of nullity, etc. rulings, and performance of obligation rulings.
- Revocation or Modification Rulings
· A “revocation or modification ruling” is a ruling which is made when the administrative appeals commission accepts that there are proper grounds for a revocation appeal, and which revokes or modifies the disposition, or orders the disposing administrative agency to revoke or modify its disposition (Article 43 (3) of the Administrative Appeals Act).
· The main text of the ruling in the written ruling would state: ‘The appellee’s disposition on January 1, 2015 in respect of the appellant involving △△ shall be revoked’ or ‘The appellee’s disposition on May 20, 2015 in respect of the appellant involving △△ shall be modified to the disposition suspending △△ for three months.’
- Affirmation of Nullity, etc. Rulings
· An “affirmation of nullity, etc. ruling” is a ruling which is made when it is accepted that there are proper grounds for an appeal for affirmation of nullity, etc., and which affirms the validity or nullity, or the existence or non-existence, of the relevant disposition (Article 43 (4) of the Administrative Appeals Act).
· The main text of the ruling in the written ruling would state: ‘The appellee’s △△ disposition on May 16, 2004 in respect of the appellant of July 16, 2004 is hereby affirmed as a nullity.’
- Performance of Obligation Rulings
· A “performance of obligation ruling” is a ruling which is made when it is accepted that there are proper grounds for an appeal for performance of obligation, and which disposes of the matter in accordance with the application forming the basis of the omission, or which orders such disposition (Article 43 (5) of the Administrative Appeals Act).
· The main text of the ruling in the written ruling would state: ‘The appellee is hereby ordered to disclose △△ among the information in respect of which the appellant has made an application for disclosure of information.’
Circumstantial Rulings- A “circumstantial ruling” is a ruling that dismisses an appeal in circumstances where it is accepted that there are proper grounds for the appeal, because to recognize it would be seriously detrimental to public welfare (The main body of Article 44 (1) of the Administrative Appeals Act).
- Circumstantial rulings are only applicable to appeals for revocation and appeals for performance of obligation, and are not applicable to appeals for affirmation of nullity, etc. (Article 44 (3) of the Administrative Appeals Act).
- If a circumstantial ruling is made, the administrative appeals commission shall expressly state in the main text of the ruling that the relevant disposition or omission is illegal or unjust, so that, by conclusively settling the illegality or injustice of the disposition or omission, an administrative claim for compensation, etc. may be made with ease (Proviso to Article 44 (1) of the Administrative Appeals Act).
- The main text of the ruling in the written ruling would state: ‘The appellant’s appeal shall be dismissed. However, the appellee’s disposition on February 3, 2005 in respect of the appellant involving △△ is illegal.’
- When making a circumstantial ruling, the administrative appeals commission may provide a reasonable remedy to the appellant, or order the appellee to provide an reasonable remedy (Article 44 (2) of the Administrative Appeals Act).
※ A “reasonable remedy” in principle relates to the entirety of the harm suffered by the appellant as a result of the circumstantial ruling, and refers to a monetary compensation or other appropriate means such as the installation of facilities which would eliminate the harm.
Effect of Rulings Binding Force- Meaning
· “Binding force” refers to the force which requires the administrative agency that is the party to the appeal, and related administrative agencies, to comply with the spirit of the ruling.
· A ruling binds the administrative agency that is the party to the appeal, and other related administrative agencies (Article 49 (1) of the Administrative Appeals Act).
- Obligation Not to Repeat (Negative Obligation)
· As the disposing administrative agency is bound by the ruling, if there has been a ruling revoking a disposition, the disposing administrative agency may not repeat dispositions which are contrary to the spirit of the ruling. In other words, the dispositions of the same substance may not be repeated under identical circumstances.
- Obligation to Act Again (Positive Obligation)
· If a disposition that is revoked or affirmed as a nullity or as non-existent, involves a refusal of an application made by the relevant party, the disposing administrative agency shall, in accordance with the spirit of the ruling, dispose of the previous application again (Article 49 (2) of the Administrative Appeals Act).
· If there is an acceptance ruling, the appellee administrative agency and related administrative agencies become subject to an obligation to revoke or modify dispositions in accordance with the ruling. If there is a ruling ordering the execution of a disposition in which the relevant party’s application was refused or neglected through an omission, then the administrative agency shall act without delay in its disposition of the previous application in accordance with the spirit of the ruling (Article 49 (3) of the Administrative Appeals Act).
※ If the appellee does not make the disposal as set out above, the commission may at the application of the appellant specify a reasonable time period and, if the appellee fails to comply within that period, may make an order for the appellee to pay certain amount of compensation corresponding to the period of delay, or to pay immediate compensation (Article 50-2 (1) of the Administrative Appeals Act).
- Obligation to Eliminate Outcome
· If a revocation ruling or nullity ruling is made in an administrative appeal, any subsequent dispositions, or legal relationships and factual relationships based on the actual measures taken, by the administrative agency in connection with the relevant disposition are rendered illegal. Accordingly, the administrative agency is under an obligation to reinstate all such matters.
- Violation of Binding Force
· Violation of Obligation Not to Repeat
√ If the administrative agency makes the same disposal again in violation of the obligation not to repeat contrary dispositions, its defect is both serious and manifest, and the disposition is therefore void.
· Violation of Obligation to Act Again (Direct Disposition)
√ If appellee does not make the disposal in accordance with the ruling, the administrative appeals commission may, at the relevant party's application, specify a time period and make a written order for its rectification. If the appellee does not comply within this time period, the commission may dispose of the matter directly; provided that, this does not apply where, due to the nature of the disposition or other unavoidable causes, the administrative appeals commission is unable to dispose of the matter directly (Article 50 (1) of the Administrative Appeals Act).
√ Where there has been a direct disposition by the administrative appeals commission, the appellee administrative agency shall treat the administrative appeals commission's disposition as though it were the relevant administrative agency's own disposition, and take the necessary measures in accordance with relevant statutes such as administration and supervision (Article 50 (2) of the Administrative Appeals Act).
Formative Force- “Formative force”, in a case where the administrative appeals commission has made a ruling revoking or modifying a disposition, refers to the ruling’s effect in giving rise to changes in legal relationships in administration, without the need to wait for the appellee administrative agency’s separate disposition.
Finality as to Disputes- Where certain grounds exist, the party subject to an administrative act may not dispute such an administrative act’s validity in a dispute resolution procedure. This is called “finality as to disputes”. If a ruling of an administrative appeals commission is itself illegal, an administrative lawsuit may be filed in respect of such ruling. However, if the period for filing lawsuit is exceeded, then it is no longer possible to dispute the validity of the ruling.
- After a ruling is made in an administrative appeal, an administrative lawsuit shall be filed within 90 days of the date of receiving service of an authenticated copy of the written ruling on the administrative appeal, and within one year of the date of the ruling (Article 20 of the Administrative Litigation Act).
Finality as to Modification- Certain administrative acts are binding on the disposing administrative agency itself, who may not revoke or modify the acts ex officio. Such an effect of an administrative act is called “finality as to modification”.
- As a ruling of the administrative appeals commission is an act of adjudication pursuant to a dispute resolution procedure, once the ruling has been made it cannot be revoked or modified even by the administrative appeals commission itself.
Authentication- “Authentication” is the effect of generally treating a defective administrative act, save where it is clearly and obviously void, as being provisionally valid until it is revoked by an authoritative agency (Supreme Court's Decision dated November 9, 1993, Case No. 93Nu14271).
- A ruling of an administrative appeals commission, as a type of administrative disposition, has authentication.
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