When Is an Adverse Disposition Made Without Prior Notice and an Opportunity to Submit Opinions Revoked? Three Judgments That Read the Exceptions in the Administrative Procedures Act Narrowly

Question

Where an administrative agency imposes an obligation on a party or restricts rights or interests by way of a disposition without giving prior notice and without affording an opportunity to be heard, is the disposition rescinded on the ground of that procedural defect alone, even though the substance of the disposition appears just? That is the starting question of this report. Article 21 (1) of the Administrative Procedures Act provides that the title of the disposition, the name or designation and address of the party, the facts giving rise to the intended disposition and the content and legal grounds of the disposition, the fact that opinions may be submitted in response thereto and the manner of handling the case where no opinions are submitted, the name and address of the opinion-submission agency, the deadline for submitting opinions, and other necessary matters shall be notified to the parties, etc. in advance, and Article 22 (3) provides that, except where a hearing or public hearing is held, the parties, etc. shall be given an opportunity to submit opinions.

The weight of the question falls on the exceptions. Article 21 (4) permits notice to be omitted where there is an urgent need to make a disposition for the safety or welfare of the public; where, upon a qualification required by statutes and regulations or the like being absent or ceasing to exist, a certain disposition must necessarily be made and that fact has been objectively proven by a court's trial or the like; or where there is a reasonable ground to recognize that hearing opinions is markedly difficult or plainly unnecessary in light of the nature of the disposition. Article 22 (4) permits a hearing of opinions to be omitted in these cases and where the party has expressly indicated an intention to waive the opportunity to state opinions. Article 3 (2) 9 excludes from the scope of application of the Act those matters prescribed by Presidential Decree, among matters which, such as disciplinary action and other dispositions under statutes relating to personnel management of public officials, are recognized as difficult or unnecessary to undergo administrative procedure by their nature.

This report examines three branches separately. First, whether the circumstance that an administrative agency gave prior notice by other means, such as administrative guidance or advance notification, can take the place of the prior notice prescribed by the Act. Second, whether the application of the Administrative Procedures Act is excluded entirely by the sole reason that a disposition is one taken under statutes relating to personnel management of public officials. Third, whether the circumstance that a conviction for failure to comply with an earlier disposition has become final renders a hearing of opinions unnecessary in a subsequent disposition.

This article does not determine the unlawfulness of any individual disposition. It sets out the materials to check and the divergent interpretations within the scope stated by the provisions and the Summary of Decision, and leaves the facts and the reasons for the conclusion that do not appear in the Summary of Decision as matters to be checked against the original text. The three judgments were pronounced in 2000, 2013, and 2020, and the current Articles 21 and 22 bear a notation of a full revision as of October 22, 2012, while Article 13 of the Enforcement Decree bears a notation of a newly established provision as of July 28, 2014; accordingly, it is noted together that each must be read on the basis of the statutes and regulations in force at the time of each disposition.

Material to check

First, the current structure of Article 21 of the Administrative Procedures Act can be confirmed. Paragraph (1) lists as matters to be notified: the title of the disposition; the name or designation and address of the party; the facts giving rise to the intended disposition and the content and legal grounds of the disposition; the fact that opinions may be submitted in response thereto and the manner of handling the case where opinions are not submitted; the name and address of the opinion-submission agency; the deadline for submitting opinions; and other necessary matters. Paragraph (3) requires the deadline for submitting opinions to be set in consideration of a period of 10 days or more necessary for submitting opinions. Paragraph (5) entrusts to the Presidential Decree the specific matters for which prior notice need not be given (newly established on January 28, 2014), and paragraph (6) requires that, where prior notice is not given, the parties, etc. be informed of the reasons therefor at the time the disposition is made (newly established on December 30, 2014). Both paragraphs contain provisions that did not exist in dispositions rendered before then.

Second, the system for hearing opinions under Article 22 can be confirmed. Paragraph (1) requires a hearing to be held where other statutes and regulations so provide, where the administrative agency deems it necessary, and where a disposition revoking a permit or license, depriving a person of status or qualification, or revoking a permit for the establishment of a corporation, association, or the like is made; paragraph (2) sets out the grounds for holding a public hearing. Paragraph (3) requires an opportunity to be given to submit opinions for other invasive dispositions, and paragraph (4) permits a hearing of opinions to be omitted in the cases of the respective subparagraphs of Article 21 (4) and where the party has expressly indicated an intention to waive the opportunity to state opinions. Since paragraph (1) bears notations of amendments in 2014 and 2022, whether the scope of subjects of a hearing at the time of the disposition was the same as it is now is a separate matter to be confirmed.

Third, the scope of exclusions from application can be confirmed. Article 3 (2) 9 excludes from the scope of application those matters prescribed by Presidential Decree, including conscription and call-up under the Military Service Act; the immigration, recognition of refugees, and naturalization of foreign nationals; disciplinary action and other dispositions under statutes relating to personnel management of public officials; and other matters which, in light of the nature of the relevant administrative action, are recognized as difficult or unnecessary to undergo administrative procedure, as well as matters for which a procedure equivalent to administrative procedure has been undergone. Article 2 of the Enforcement Decree enumerates as such matters: matters concerning disciplinary action and other dispositions under statutes and regulations relating to personnel management of public officials (subparagraph 3); matters concerning the imposition and collection of taxes under tax-related statutes and regulations (subparagraph 5); and matters carried out through a resolution or decision of the Fair Trade Commission under the Monopoly Regulation and Fair Trade Act, among others (subparagraph 6). The point that, reading only the text of the Enforcement Decree, it may appear as though personnel dispositions in their entirety are excluded connects to the issue in 2011Du30687.

Fourth, the grounds for omission of prior notice under Article 13 of the Enforcement Decree can be confirmed. This Article was newly established on July 28, 2014, and lists: cases where an urgent disposition is necessary for the safety or welfare of the public, such as the prevention or removal of imminent harm (subparagraph 1); cases where, upon the facts underlying the disposition being objectively proven by a court's trial or by a decision of an administrative agency undergoing a quasi-judicial procedure, a hearing of opinions following the disposition is recognized as unnecessary (subparagraph 2); cases where, as the content of the disposition becomes known in advance through a hearing of opinions, conduct markedly detrimental to the public interest is anticipated to be induced (subparagraph 3); cases where a fact falling markedly short of a clear technical standard has been clearly proven by objective means (subparagraph 4); and monetary performance orders and the like where the satisfaction of requirements is manifest and there is no room for discretion in calculating the amount (subparagraph 5). 2017Du66602 addresses the meaning of subparagraph 2 among these.

Fifth, the documents exchanged between the administrative agency and the party before and after the disposition. It can be confirmed whether there was a prior notice form, whether, if there was, the matters of the respective subparagraphs of Article 21 (1) were recorded without omission, and what the deadline for submitting opinions was. If there were an administrative guidance official document, an interview record, or a promise of performance by the party, it is necessary to distinguish whether that is a document possessing the elements of statutory prior notice, an express indication of waiver of the opportunity to state opinions as referred to in Article 22 (4), or no more than a simple expression of willingness to cooperate.

Sixth, the statute serving as the grounds for the disposition and the point in time of the reasons for the disposition. Whether the governing provision required that a disposition necessarily be made upon certain facts existing, or left the administrative agency to choose whether and in what content to make the disposition, is intertwined with the assessment of the grounds for exception. If there was a prior trial or decision, one may compare whether the facts proven by that trial are the same facts, as to the same subject and the same point in time, as the underlying facts of this disposition, and whether time elapsed in the meantime such that there was room for circumstances to have changed. The measure order under Article 48 of the former Radioactive Waste Management Act at issue in 2017Du66602 is prescribed in the same form under Article 48 (1) of the current Radioactive Waste Management Act, under which necessary measures may be ordered upon the person subject to a measure order within a fixed period.

Possible readings

One line of interpretation looks strictly to the form of statutory Procedure. Since prior notice and the submission of opinions are procedures for which the Act has specified even the items and the deadline, the circumstance that notice was in fact given through another channel cannot take their place, and the grounds for exception must be read narrowly within the scope set by the text. That the Summary of Decision of all three judgments commonly states that, unless the case falls under an exceptional case, the disposition is unlawful and cannot escape rescission is aligned with this reading.

Another line of interpretation looks to whether the purpose of the procedure has been achieved. The contention is that, where the party already knew the cause and content of the disposition and in fact had an opportunity to speak, the formal defect does not affect the conclusion. Advance notification in the manner of administrative guidance, the party's voluntary promise of performance, and the circumstance that dispositions of the same content were repeated may be presented as the basis for such contentions. However, since the Summary of Decision in 99Du5870 states that the grounds of advance notification in the manner of administrative guidance or the party's voluntary promise to abandon the well and the like alone cannot be regarded as falling under an exception, the place for this reading is narrowed to cases where there are separate circumstances not addressed in the Summary of Decision.

Interpretation may also diverge as to the scope of exclusions from application. Read broadly, dispositions under statutes relating to personnel management of public officials, regardless of their kind, are placed outside the Administrative Procedures Act. Read narrowly, only dispositions for which administrative procedure is difficult or unnecessary by their nature, or dispositions for which a procedure equivalent to administrative procedure has been prescribed, are excluded. Since 2011Du30687 adopted the latter reading, when a personnel disposition is at issue, one first confirms whether the governing personnel statute provides a separate procedure for that disposition, and whether a procedure is difficult or unnecessary in light of the nature of the disposition.

There is also a divergence surrounding the scope of facts proven by a trial. Read broadly, once the preceding criminal trial has confirmed the violation by the subject of the disposition, there is no need to hear opinions again in the later disposition. Read narrowly, the exception applies only where the facts proven by the trial cover all the underlying facts of this disposition and where, even upon hearing opinions, neither the making of the disposition nor its degree could change. 2017Du66602 adopted the latter reading, considering together whether the provision serving as the grounds for the disposition involves a discretionary act and the lapse of time since the preceding judgment became final.

The question of what effect a procedural defect leads to is also a passage to be read in layers. Since the Summary of Decision of the three judgments states that a disposition made without undergoing the procedure is unlawful and cannot escape rescission, it addresses unlawfulness as a ground for rescission. 2017Du66602 was a case seeking a confirmation of nullity, and the operative part dismissed the final appeal and imposed the costs of the final appeal on the plaintiff. Since the Summary of Decision states only that the grounds for exception are not met, the determination of whether the procedural defect reaches the grounds for nullity and the reasons therefor remain as a part to be checked against the full text of the judgment.

Which reading to adopt is left for the reader to determine, after aligning in chronological order the text of the statutes and regulations in force at the time of the disposition, the nature of the provision serving as the grounds for the disposition, and the contents of the prior contact records. This article does not assert the legality of any particular disposition, and goes no further than separating the branches of interpretation and the points of comparison.

What the decisions held

Supreme Court Decision 99Du5870 decided November 14, 2000, relying on Article 21 (1) and (4) and Articles 22 (1) through (4) of the Administrative Procedures Act, stated: “Where an administrative agency, in making an invasive administrative disposition, has not given the party such prior notice or an opportunity to submit opinions, unless the case falls under an exceptional case in which prior notice need not be given or an opportunity to submit opinions need not be afforded, the disposition is unlawful and cannot escape rescission.” It then held the disposition unlawful in a case where the administrative agency, having overlooked that the area was a hot spring district and having accepted the report on the development and use of groundwater, revoked the disposition accepting the report and issued an order to restore the original state without prior notice or an opportunity to submit opinions, on the ground that “the grounds of advance notification in the manner of administrative guidance or the party's consequent voluntary promise to abandon the well and the like alone cannot be regarded as falling under an exception prescribed in the Administrative Procedures Act in which prior notice and the like need not be given.” The operative part dismissed the final appeal and imposed the costs of the final appeal on the defendant.

Supreme Court Decision 2011Du30687 decided January 16, 2013, applying the former Administrative Procedures Act prior to the amendment of October 22, 2012, and the former Enforcement Decree prior to the amendment of December 21, 2011, confirmed the principle of the same tenor and then narrowed the scope of exclusions from application. The Summary of Decision states: “Even as to matters concerning dispositions under statutes relating to personnel management of public officials, the application of the Administrative Procedures Act is not excluded in its entirety; it must be regarded that the application of the Administrative Procedures Act is excluded only in the case of dispositions which are recognized as difficult or unnecessary to undergo administrative procedure by their nature, or dispositions for which a procedure equivalent to administrative procedure has been prescribed,” and held that this legal principle applies equally to an ex officio dismissal disposition against a public official in a specially appointed position. The operative part dismissed the final appeal and imposed the costs of the final appeal on the defendant.

Supreme Court Decision 2017Du66602 decided July 23, 2020, construed the exception under Article 13 (2) of the Enforcement Decree to mean “cases where, upon the facts underlying the disposition being objectively proven by a court's trial or the like, the administrative agency must necessarily make a certain disposition, and other cases in which a hearing of opinions cannot affect the administrative agency's decision whether to make a disposition or the degree thereof,” and held that “where only ‘part’ of the facts underlying the disposition has been proven, or where the administrative agency's decision whether to make a disposition or the degree of the disposition may change according to the hearing of opinions, the case does not fall under the above grounds for exception.”

The same decision, in a case where a third measure order was made without prior notice or a hearing of opinions after convictions for failure to comply with the first and second measure orders had each become final, held that the grounds for exception were not met, citing that there was a lapse of time from the time the conviction became final to the time of the third measure order such that there was room for a change of circumstances; that it is difficult to state categorically that the ground for the disposition, namely that the waste left unattended at the time of the third measure order was not being properly treated, had been objectively proven by the conviction; and that the measure order under Article 48 of the former Waste Management Act is a discretionary act. The operative part dismissed the final appeal and imposed the costs of the final appeal on the plaintiff, and the reasons for the conclusion on the claim for confirmation of nullity do not appear in the Summary of Decision.

Practical checklist

This item is not advice, but a bundle of questions that may be raised when comparing Records. First, the nature of the disposition may be questioned. One can confirm whether it is a disposition imposing an obligation on a party or restricting rights or interests; whether the governing provision required that a disposition necessarily be made upon certain facts existing, or left the administrative agency to choose whether and in what content to make the disposition; and what the text of the Administrative Procedures Act and the Enforcement Decree in force at the time of the disposition was.

Second, the existence and content of the notice may be questioned. Whether there was a prior notice form, whether the matters of the respective subparagraphs of Article 21 (1) were recorded, what the deadline for submitting opinions was, and, if notice was omitted, whether the reasons were communicated at the time of the disposition (current Article 21 (6)) can be matched against the documents and dates.

Third, the basis of the claim of exception may be questioned. Which subparagraph of Article 21 (4) and which subparagraph of Article 13 of the Enforcement Decree the administrative agency invokes as grounds; whether the facts proven by the trial or decision and the underlying facts of this disposition are the same; what the time interval between them and the possibility of a change of circumstances were; and whether the party's indication of waiver remains in a clear document, can be compared.

Fourth, whether there is an exclusion from application may be questioned. One can confirm under which subparagraph of the respective subparagraphs of Article 3 (2) and which subparagraph of the respective subparagraphs of Article 2 of the Enforcement Decree the disposition is claimed to fall; whether a separate procedure equivalent to administrative procedure was provided for the relevant disposition and was in fact undergone; and whether there are specific circumstances making a procedure difficult or unnecessary in light of the nature of the disposition. This is in every respect a list of materials to check, and the conclusion is drawn by the reader.

Glossary

An invasive disposition is the term used in the Summary of Decision, referring to a disposition that imposes an obligation on a party or restricts rights or interests as referred to in Article 21 (1) and Article 22 (3) of the Administrative Procedures Act. The duties of prior notice and the submission of opinions attach to dispositions of this category.

Prior notice is the procedure of informing the parties, etc. before the disposition of the title of the disposition, the facts giving rise to it, its content and legal grounds, the method and deadline for submitting opinions, and the like. Hearing of opinions is a term encompassing a hearing, a public hearing, and the submission of opinions, and Article 22 sets out that distinction.

Exclusion from application means not applying the Administrative Procedures Act to matters falling under the respective subparagraphs of Article 3 (2). Subparagraph 9 covers those matters prescribed by Presidential Decree, among matters for which undergoing a procedure is difficult or unnecessary by their nature and matters for which an equivalent procedure has been undergone, and Article 2 of the Enforcement Decree is the list thereof.

A discretionary act is a doctrinal term referring to an act for which the governing provision leaves to the administrative agency the choice of whether to make a disposition and in what content to make it. 2017Du66602 regarded the measure order under Article 48 of the former Radioactive Waste Management Act as a discretionary act, and took the point that a hearing of opinions could affect whether or the degree to which the disposition is made as the basis for denying the exception.

Sources and limitations

The source of the provisions is the current official text of the National Law Information Center. Articles 1, 3, 21, and 22 of the Administrative Procedures Act are based on Act No. 18748 [enforced July 12, 2022], Articles 2 and 13 of the Enforcement Decree of the Administrative Procedures Act on Presidential Decree No. 33649 [enforced August 1, 2023], and Article 48 of the Waste Management Act on Act No. 21467 [enforced September 18, 2026], and the date of comparison is October 16, 2026.

The source of the judgments is the Holdings, Summary of Decision, and dispositive part of the three judgments posted in the National Law Information Center. The Summary of Decision cited was carried over in the original wording as it is, and the specific facts of the parties to the Case and of the disposition were not stated beyond the scope set out in the Summary of Decision. The full text of the reasons for the judgments and the lower court judgments were not compared.

The original texts of the former Administrative Procedures Act (before the amendment of October 22, 2012), the former Enforcement Decree of the Administrative Procedures Act (before the amendment of December 21, 2011), and the former Radioactive Waste Management Act (before the amendment of July 20, 2015), as in force at the time of the disposition, were not separately compared in this writing. Differences between the current provisions and the provisions in force at the time of the disposition were described only within the extent ascertainable from the amendment and insertion marks attached to the provisions.

Points left open

Whether a defect in the Procedure reaches grounds for invalidity rather than grounds for cancellation remains an open question. 2017Du66602 was a Case for confirmation of invalidity, but since the Summary of Decision addresses only whether the grounds for exception apply, how the standard distinguishing invalidity from cancellation is applied to flaws in the Procedure needs to be examined together with the full text of the judgment and other judgments.

The question of curing defects also remains. Whether a defect in the Procedure is remedied if opinions were heard after the disposition or if the parties had a sufficient opportunity to contest the matter during the lawsuit, and whether failure to give notification of the reasons under current Article 21 paragraph (6) is itself unlawful, were not addressed in the Summary of Decision of the three judgments.

The relationship between each subparagraph of Article 13 of the Enforcement Decree and Article 21 paragraph (4) of the Act also leaves room for further examination. Although Article 21 paragraph (5) of the Act delegates specific matters to the Presidential Decree, if the grounds for omission under the Enforcement Decree are read more broadly than the exception prescribed by the Act, the scope of delegation may become an issue. The fact that 2017Du66602 construed Article 13 subparagraph 2 of the Enforcement Decree narrowly, in light of the legislative purpose of the Administrative Procedures Act and the intent of the system of hearing opinions, is also connected to this relationship.

Whether the Procedure must be followed each time when dispositions of the same content are repeated, and what degree of time interval or change of circumstances is required for a new hearing of opinions to be necessary, are areas for which the standard has not been settled. What meaning the Procedure records of a preceding disposition have in a later disposition may be read differently in each case.

When to reconsider

If Articles 3, 21, and 22 of the Administrative Procedures Act, or Articles 2 and 13 of the Enforcement Decree of the same Act, are amended, or if a new determination of the Supreme Court is rendered on the grounds for exception to prior notice and hearing of opinions and the scope of exclusion from application, this report will be rewritten.

At that time, under the principle that the law in force at the time of the disposition governs, the divergences among the grounds for exception will be organized anew within the scope stated by the Holdings and Summary of Decision of the three judgments and the new judgment.

Statutes referred to

• 행정절차법 제1조, 제3조, 제21조, 제22조
• 행정절차법 시행령 제2조, 제13조
• 폐기물관리법 제48조

Decisions referred to

• 대법원 2000. 11. 14. 선고 99두5870 판결 · Decision ledger
• 대법원 2013. 1. 16. 선고 2011두30687 판결 · Decision ledger
• 대법원 2020. 7. 23. 선고 2017두66602 판결 · Decision ledger

Verification status

The cited provisions (Articles 1, 3, 21, and 22 of the Administrative Procedures Act, Articles 2 and 13 of the Enforcement Decree of the Administrative Procedures Act, and Article 48 of the Radioactive Waste Management Act) were checked against the current original text on the National Law Information Center as of October 16, 2026. The cited judgments (Supreme Court Decision 99Du5870 decided November 14, 2000, Supreme Court Decision 2011Du30687 decided January 16, 2013, and Supreme Court Decision 2017Du66602 decided July 23, 2020) were checked against the Holdings, Summary of Decision, and disposition of the original judgment text on the National Law Information Center. The original text of the former statute in force at the time of the disposition and the full text of the reasons for judgment were not checked.