Administrative Litigation
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  • As one type of administrative review, administrative litigation remedies an infringement of the rights or interests of the people that result from an illegal disposition by an ‘administrative agency’ or any other non-exercise of public power. It also resolves the issue of rights under public law or contestable issues on the application of laws.
  • Subject Matter of Administrative Litigation
  • This refers to the exercise of public power or the rejection thereof by an administrative agency, such as a disposition, or the reconsideration of any other equivalent administrative operation or administrative judgment.
    ※ Abstract administrative legislation acts, internal acts by an administrative agency, mutual acts of administrative agencies, private economic acts, and genuine factual acts should be excluded from the subject matter for administrative litigation.
    • Inaction
    • This refers to the failure of an administrative agency to meet its legal obligation to issue certain dispositions, within a substantial period of time, with respect to concerned parties.
  • Types of Administrative Litigation
    • Appeals Proceedings
    • 1. Concept
    • As the most representative type of administrative litigation, appeals are legal proceedings that a person initiates in order to contest administrative action that is perceived to infringe upon his or her rights or interests, alleging that his or her rights or interests have been infringed upon as the result of a disposition or inaction by operation of superior administrative intentions of an administrative agency.
    • 2. Type
    • A. Cancellation Proceedings. As the most representative type of appeals proceedings, cancellation proceedings are legal proceedings that seek to cancel or change a disposition or force an administrative agency to reconsider a prior decision.
      For example, cancellation of dispositions pertaining to local tax impositions, cancellation of dispositions for the return of construction permits, or cancellations of dispositions that cancel a driving license.
      B. Confirmation Litigation, Including Invalidation
      These are legal proceedings that confirm the effectiveness or existence of the dispositions of an administrative agency.
      For example, confirmation litigation of the invalidation of a disposition for transportation business permits confirmation litigation of the invalidation of overseas construction licenses.
      C. Litigation to Confirm the Illegality of Inaction
      It is legal proceedings to confirm that inaction of an administrative agency is illegal, that is, the litigation to seek confirmation of illegality of the fact that although an administrative agency has legal obligations to issue certain dispositions within a substantial period of time with respect to applications of parties concerned, it has failed to do so.
    • Litigation of Parties Concerned
    • 1. Concept
    • Litigation related to legal relationships pertaining to the dispositions issued by an administrative agency or any other litigation pertaining to legal relations under public law. In such cases, one party of the legal relationship will act as the defendant.
    • 2. Example
    • Litigation related to the confirmation of position or status under public law; litigation pertaining to the return of unjust enrichment according to public law, which is premised upon the invalidation or cancellation of dispositions; litigation pertaining to requests for monetary payment under public law; litigation pertaining to contracts under public law.
    • The People’s Ligitation
    • 1. Concept
    • These are legal proceedings that seek to correct certain activities, regardless of one’s direct legal interests, when a country or agency of public entities has engaged in activities that are against the law.
    • 2. Example
    • The people’s litigation under the Election Act, the people’s litigation under the National Referendum Act.
    • Institutional Litigation
    • 1. Concept
    • These are legal proceedings that seek to resolve contestable issues pertaining to the existence or the exercise of rights between a country and agencies of public entities.
    • 2. Example
    • Litigation to confirm the invalidation of amended ordinances submitted by the urban planning committee in ○○ province; to confirm the invalidation of ordinance proposals for the establishment of a council office or quorum of clerical employees as requested by ○○ provincial governor against ○○ provincial council; litigation to confirm the invalidation of ordinances pertaining to administrative grievance procedures as requested by ○○ provincial governor against ○○ provincial council.
    • Appeals Proceedings, Party’s Litigation
    • ① The first court of competent jurisdiction is the administrative court where a defendant is located; provided, however, that a central administrative agency, or its head, is the defendant, you may also bring the proceedings to the administrative court where the Supreme Court is located.
      ② With respect to the cancellation of land expropriation or other dispositions relating to real estate or special locations, you may also bring the proceedings to the administrative court with jurisdiction over the real estate or area pertaining to the disputed location.
    • Institutional Litigation, the People’s Litigation
    • ① Individual laws have special provisions on jurisdiction.
      ② Out of the people’s litigation, the invalidation proceedings of the national referendum and the invalidation proceedings for an election or the return of a president, a member of the National Assembly, a city governor (Special City, Metropolitan City) should be heard by the Supreme Court, local council members, or the heads of districts (gu), city (si), county (gun) as the competent courts of jurisdiction. The invalidation proceedings for an election or return should be heard by a higher court as the competent court of jurisdiction.
      ③ All institutional litigation should be heard by the Supreme Court as the competent court of jurisdiction.
  • Jurisdiction of Administrative Litigation
    • Exhaustion Principle for Administrative Judgment
    • ① Where, with respect to an administrative disposition, you may file an application for administrative judgment, a request for review, a request for objection, or other appeals to an administrative agency, under other law, you should not initiate appeals proceedings until you have passed through the relevant reconsideration proceedings.
      ② From March 1, 1998, except for cases where individual laws require the passage of administrative judgment, you may bring litigation without having passed through an administrative judgment (converted the required exhaustion principle to the voluntary exhaustion principle).
    • Standing as the Defendant
    • ① The defendant should be the administrative agency that issued the “dispositions” that are the subject of administrative litigation.
      ② Where there is a delegation from or commitment by an administrative authority, it should be the delegated or committed authority.
    • Statute of Limitations
    • ① With respect to cancellation proceedings that require the voluntary exhaustion principle, proceedings should commence within ninety (90) days of your becoming aware of a disposition.
      ② With respect to proceedings that have to pass the required exhaustion principle or have passed the voluntary exhaustion principle, proceedings should commence within ninety (90) days of your having received a true copy of the reconsideration notice,
      ③ Under no circumstances should you commence proceedings after one (1) year has elapsed from the date of disposition, without a reasonable cause.
    • Inquisitorial Principle
    • ① When a court finds it necessary, it may conduct its own private investigation in to the matter. It may also find facts that have not been alleged by the parties concerned.
      ② Since the Supreme Court, as the highest court in the land, considers legal questions only, any new allegations or proof are not permissible. Therefore, all matters relating to a case at hand should be disclosed at the stage of a higher court and the relevant materials submitted accordingly.
    • Judgment of Circumstances
    • ① Even where a plaintiff’s request has reasonable cause, if it is judged that the cancellation of a disposition will seriously impact public welfare, the plaintiff’s request may be dismissed.
      ② Under the generally accepted views and the case laws, the judgment of circumstances should be allowed only during cancellation proceedings.
    • Non-discontinuance Principle of the Execution of a Disposition
    • ① Under the above principle, commencing cancellation proceedings should not affect the effectiveness or execution of a disposition or the continuance of the proceedings. Therefore, commencing administrative proceedings should not negate the execution of administrative dispositions.
      ② However, exceptions can be made so that a court may order an administrative disposition to be discontinued in unforeseen circumstances.
  • Review and Judgment of Administrative Litigation
    • Review of Administrative Litigation
    • ① When legal proceedings are commenced, a court decides whether the requirements for litigation have been met (decision on the requirements). Where a court finds that the requirements have not been met, it may reject the application for legal proceedings. Where the requirements for litigation have been met, a court may cite or dismiss a request upon reviewing the case based on its merits (decision based on merit).
      ② The decision based on merit considers whether there exists a deviation from or an abuse of an administrative agency’s discretion and all legal matters relating to the disposition and facts.
    • Judgment of Administrative Litigation
    • ① Judgment of Litigation (Judgment of Rejection), Judgment Based on Merit
      • Judgment of Litigation: judgment to reject a case at hand because the requirements for litigation do not conform to those required for administrative litigation purposes.
      • Judgment Based on Merit: judgment to cite or dismiss a case at hand in consideration of whether a request for administrative litigation is proper.
    • ② Judgment of Request Dismissal
    • A judgment to exclude a case at hand based on the fact that a plaintiff’s request does not have sufficient basis. In general, judgment of dismissal is limited to cases where dispositions, as the subject of administrative litigation, are not shown to be illegal or where the litigation’s subject matter or interests have disappeared once administrative litigation has commenced.
    • ③ Judgment of Request Citation
    • Judgment to cite the whole or part of a request in consideration of the fact that a plaintiff’s request has sufficient basis.
    • Completion of Administrative Litigation
    • ① Confirmation of a Final Decision: a judgment is confirmed by dismissal of the right to appeal, the lapse of the period for an appeal, or the final decision of a higher court.
      ② Completion by the Act of the Parties Concerned: judgment is completed by the withdrawal of litigation, a dismissal or citation of a request, or a settlement under the litigation.