의제된 인허가를 다투는 항고소송의 대상과 피고적격

Abstract

An appeal litigation related to deemed permission disputes has a structure in which an interested third party becomes a plaintiff and files a lawsuit to remove damage caused by the deemed permissions. As such a case where the third party becomes a plaintiff and seeks revocation or invalidation of the deemed permissions, the other party of disposition often actively tries to vindicate through intervention. This is a typical structure of appeal litigation disputing deemed permissions. Precedent has not yet been established as to how the subject of the appeal litigation and defendant eligibility of the appeal litigation should be decided, and there are mixed conclusions of the related issues from the lower court. The Supreme Court ruled that, at least in the case of the ‘partial deemed permission’, the deemed permission, instead of the primary permission, should be viewed as the subject of the appeal litigation. There is a positive aspect in this ruling in that there was progress in acknowledging the disposition of deemed permissions. Regardless of the type of deemed permission, however, taking into account that there are cases in which whether the requirements for the deemed permission are satisfied becomes a decisive factor in the issuance of the primary permission, the primary permission may also be considered as the subject of an appeal litigation at the plaintiff’s choice. In cases where the primary agency and the relevant agency differs, the defendant eligibility may become an issue. Considering the possibility of the third party to be able to distinguish primary and relevant agencies and the concept of disposition under appeal litigation, the primary agency should be regarded as the defendant. After the enforcement of the General Act On Public Administration, there is room to view it differently, nevertheless, it remains reasonable to view the primary agency as the defendant. Above all, it is necessary to ensure that the plaintiff receives proper judgment and prevent issues that may come from complicated legal principles of deemed permissions. Therefore, disadvantages of the plaintiff should be minimized by actively utilizing the right to request elucidation and change of action.