Board of Audit and Inspection Review Request — A Separate Remedy from Administrative Appeals
When people receive an administrative disposition from a government agency, the first term they usually search for is “administrative appeal.”
This is because administrative appeals are one of the most common remedies when a person wants to challenge an administrative disposition such as a business suspension, administrative fine, permit revocation, or tax assessment.
However, before looking only into an administrative appeal and immediately filing one, it is worth checking one more thing.
An administrative appeal is not the only route for challenging an administrative disposition.
One representative alternative is a review request under Article 43 of the Board of Audit and Inspection Act.
Wait, Are an “Audit Request” and a “Review Request” Different?
Yes, they are completely different.
Many people confuse the two.
| System | Legal Basis | Purpose | Who May File | |---|---|---|---| | Review Request to the Board of Audit and Inspection | Article 43 of the Board of Audit and Inspection Act | Challenging an administrative disposition or similar action that affected you | An interested party | | Citizen Audit Request | Article 72 et seq. of the Act on the Prevention of Corruption and the Establishment and Management of the Anti-Corruption and Civil Rights Commission | Requesting an audit of a public institution’s legal violations or corrupt conduct | At least 300 citizens satisfying statutory requirements | | Administrative Appeal | Article 3 of the Administrative Appeals Act | Challenging an unlawful or unjust disposition by an administrative agency | The person subject to the disposition, etc. | | Administrative Litigation | Article 3 of the Administrative Litigation Act | Seeking revocation or similar relief from a court | A plaintiff with legal standing |
This article deals with a review request under Article 43 of the Board of Audit and Inspection Act.
Simply put, this is not a system for reporting, “Please audit this agency.”
It is a remedy through which you ask the Board of Audit and Inspection to review and correct a disposition you received because it was improper or unlawful.
So What Makes a BAI Review Request Different?
An administrative appeal is reviewed and decided by the competent Administrative Appeals Commission.
A review request to the Board of Audit and Inspection is reviewed and decided by the Board of Audit and Inspection.
In other words, the reviewing body is different, even if the underlying disposition is the same.
Article 43(1) of the Board of Audit and Inspection Act provides as follows:
A person who has an interest in a disposition concerning the duties of a person subject to audit by the Board of Audit and Inspection, or in any other act prescribed by the Rules of the Board of Audit and Inspection, may file a request for review with the Board of Audit and Inspection.
This means that the procedure is not merely a civil complaint.
If the Board of Audit and Inspection reviews the matter and finds the request well-grounded, it may require the head of the relevant agency to take corrective or other necessary measures under Article 46 of the Board of Audit and Inspection Act.
If the request is not well-grounded, it will be dismissed on the merits.
The structure is similar to a ruling in an administrative appeal.
The courts have also not treated this simply as a civil complaint.
The Supreme Court has recognized that, in the case of a tax assessment, going through a review request under Article 43 of the Board of Audit and Inspection Act may satisfy the prior administrative remedy requirement for filing administrative litigation, in the same way as going through the objection procedures prescribed by the Framework Act on National Taxes.
In short, a BAI review request is a formal remedy recognized by the courts.
Should I Consider a BAI Review Request in My Case?
Think about the disposition you received and check the following.
- [ ] Was the disposition issued by a central administrative agency, such as a ministry, agency, or office, and is it subject to audit by the Board of Audit and Inspection?
- [ ] Did the grounds for the disposition involve an exercise of official discretion?
- [ ] Are there many administrative appeal decisions dismissing similar types of cases?
- [ ] Were there procedural defects in the process, such as failure to give notice or failure to provide an opportunity to submit opinions?
- [ ] Is the disposition related to tax?
If even one of these applies, it is worth comparing whether an administrative appeal or a BAI review request is more suitable for your case.
By this point, you may already be wondering, “Which route does my notice fall under?”
If you send just one photo of your notice, I will review for free whether an administrative appeal or a BAI review request is the more appropriate route.
Pitfall 1. If You Only Search for Administrative Appeals, You May Miss the Review Request Option
Administrative appeals have an online filing system, and the filing process is relatively well organized.
By contrast, a BAI review request generally requires submitting a written review request to the Board of Audit and Inspection, and the filing infrastructure is not as streamlined as the administrative appeal system.
As a result, unless a person is a legal professional, many people do not even know this route exists.
The important point is that the Board of Audit and Inspection and the Administrative Appeals Commission are different reviewing bodies with different legal bases.
Depending on the type of disposition, the applicable law, previous decisions, and the issues you intend to dispute, the more appropriate procedure may vary.
It is difficult to generalize by saying, “Administrative appeals are more likely to succeed,” or “The Board of Audit and Inspection cancels more dispositions.”
What matters is that, after receiving an administrative disposition, you should not look only at administrative appeals.
You should also compare the possibility of a review request to the Board of Audit and Inspection.
In an authoritative interpretation, the Ministry of Government Legislation has also explained the issue on the premise that a BAI review request has a review-and-decision structure similar to an ordinary remedy seeking cancellation or modification of a disposition.
Ministry of Government Legislation Interpretation, October 24, 2023, No. 23-0439
Board of Audit and Inspection — Whether a licensed administrative agent may be appointed as a representative for a review request under Article 43(1) of the Board of Audit and Inspection Act
Related to Article 4(1)3 of the Rules on Review Requests to the Board of Audit and Inspection, etc.
Pitfall 2. It Is Risky to Assume the Deadline Is “the Same as an Administrative Appeal”
The basic deadline structure is similar to that of administrative appeals, but its legal character is expressly stated in the statute.
The title of Article 44 of the Board of Audit and Inspection Act is “Exclusion Period,” and paragraph 2 of the same article expressly provides that this period is a “peremptory period.”
Both are clearly stated in the text of the law.
An exclusion period means, in simple terms, “a deadline set by law after which the procedure can no longer be used.”
A peremptory period means that the parties cannot freely extend it or agree to extend it.
Looking only at the numbers, it appears the same as an administrative appeal.
Both use 90 days and 180 days.
However, the exceptions that apply when the deadline is missed may not be the same.
As a rule, an administrative appeal must be filed within 90 days from the date the person became aware of the disposition, and within 180 days from the date the disposition was made.
However, even if 180 days have passed, an exception may be recognized where there is a justifiable reason.
There are also separate remedial provisions for situations such as failure to meet the 90-day deadline due to force majeure or where the administrative agency incorrectly informed the person of the appeal period.
By contrast, Article 44 of the Board of Audit and Inspection Act provides for 90 days from the date the person became aware of the act and 180 days from the date the act occurred, while characterizing the period as both an exclusion period and a peremptory period.
Unlike the Administrative Appeals Act, it does not contain a provision stating that an exception may apply to the 180-day period where there is a justifiable reason.
Therefore, it is risky to think, “Administrative appeals are 90 days and 180 days, and BAI review requests are also 90 days and 180 days, so they must be the same.”
Especially if a significant amount of time has already passed, each deadline rule should be checked separately before deciding which procedure to choose.
Furthermore, if a special statute such as tax law is involved, separate special rules may apply.
It is safer to check the individual statute rather than assuming that the deadline is the same as the administrative appeal deadline.
Pitfall 3. “Can a Licensed Administrative Agent Represent Me in a BAI Review Request?”
The answer is: No, they cannot act as your representative.
Ministry of Government Legislation Interpretation No. 23-0439 concluded that a licensed administrative agent cannot be appointed as a representative in a BAI review request.
The reason is that a licensed administrative agent is not included in the phrase “a person who may represent an application concerning an objection under another Act” under Article 4(1)3 of the Rules on Review Requests to the Board of Audit and Inspection.
There is an interesting point in this interpretation.
In issuing this interpretation, the Ministry of Government Legislation proceeded on the premise that a BAI review request has a review-and-decision structure similar to an ordinary remedy seeking cancellation or modification of a disposition.
The fact that the scope of a licensed administrative agent’s work itself became the issue in this interpretation also shows that a BAI review request is a separate formal remedy.
Then what can a licensed administrative agent do?
Article 2(1)1 of the Licensed Administrative Agent Act defines the preparation of documents to be submitted to administrative agencies as part of a licensed administrative agent’s work.
Article 2(1)1(a) of the Enforcement Decree of the same Act expressly includes the preparation of documents concerning objections to be submitted to administrative agencies.
Accordingly, under these laws, a licensed administrative agent may perform the following work.
| Work | Whether a Licensed Administrative Agent May Do It | Basis | |---|---:|---| | Preparing a BAI review request document | Yes | Article 2(1)1 of the Licensed Administrative Agent Act; Article 2(1)1(a) of its Enforcement Decree | | Organizing and preparing evidentiary documents | Yes | Same | | Analyzing the disposition and advising on procedural options | Yes | Consultation under Article 2(1)4 of the Licensed Administrative Agent Act | | Being appointed as representative in a BAI review request | No | Ministry of Government Legislation Interpretation No. 23-0439 | | Representing a party in administrative litigation | No | Article 109 of the Attorney-at-Law Act |
Pitfall 4. Filing a BAI Review Request Does Not Mean Your Litigation Preparation Is Complete
Does filing a BAI review request always satisfy the prior administrative remedy requirement for administrative litigation?
No.
The Supreme Court has recognized that, in cases involving tax assessment and collection dispositions, going through a BAI review request may satisfy the prior administrative remedy requirement.
However, this does not automatically apply to every type of disposition.
Whether a BAI review request is recognized as satisfying the prior administrative remedy requirement may differ depending on the type of disposition and the applicable law.
For example, in tax cases, Article 56 of the Framework Act on National Taxes expressly includes a review request under the Board of Audit and Inspection Act as one of the available objection routes.
Other individual statutes, however, may not do the same.
If you assume that filing a BAI review request is enough and miss the litigation deadline, there is a risk that the lawsuit may later be dismissed for “failure to complete the required prior administrative procedure.”
Pitfall 5. Not Every Administrative Disposition Can Be Taken to the Board of Audit and Inspection
A BAI review request is not available for every disposition issued by every administrative agency.
The starting point of Article 43 of the Board of Audit and Inspection Act is a “disposition concerning the duties of a person subject to audit by the Board of Audit and Inspection.”
In other words, you must first check whether the disposing agency and the relevant duties are subject to audit under the Board of Audit and Inspection Act, and whether the disposition or act falls within the scope of a review request.
If any item in the checklist above applies to you, please send the original notice.
I will review for free whether your case is eligible for a BAI review request, which procedural route is more appropriate, and whether the prior administrative remedy requirement may be satisfied.
Can I Just Send It Directly to the Board of Audit and Inspection?
As a rule, no.
Under Article 43(2) of the Board of Audit and Inspection Act, the written review request must be submitted through the head of the relevant agency that made the disposition.
The structure is that the relevant agency issues a receipt, attaches its opinion after receiving the request, and forwards it to the Board of Audit and Inspection.
The review request under paragraph (1) shall be made in the form of a written request stating the purpose and grounds of the request, as prescribed by the Rules of the Board of Audit and Inspection, and shall be submitted through the head of the agency that made the disposition or other act giving rise to the request, hereinafter referred to as the “relevant agency.”
Article 43(2) of the Board of Audit and Inspection Act
However, if the relevant agency does not forward the request to the Board of Audit and Inspection within one month after receiving it, the requester may file the review request directly with the Board of Audit and Inspection.
To summarize, the process is as follows.
- Receive the disposition notice
- Check eligibility for a BAI review request
- Check the 90-day and 180-day deadlines
- Submit the written review request to the relevant agency
- The relevant agency attaches its opinion and forwards it to the Board of Audit and Inspection
- The Board of Audit and Inspection reviews the matter
- The Board issues a decision: rejection, dismissal on the merits, or corrective measures, etc.
Compared with administrative appeals, which can be filed online, this procedure is clearly different.
If you assume from the beginning that you can submit the request directly to the Board of Audit and Inspection as a rule, you may misunderstand the procedure.
You should first confirm whether the request must be submitted through the relevant agency.
When Will a Decision Be Issued After Filing?
The Board of Audit and Inspection Act provides that, unless there are special circumstances, a decision should be made within three months from the date of receipt.
Once a decision is issued, the written decision is sent to the requester and the head of the relevant agency within seven days.
Do I Need to Prepare All Evidence Perfectly from the Beginning?
Of course, it is best to prepare the initial submission as thoroughly as possible.
However, the Rules on Review Requests to the Board of Audit and Inspection allow the requester to amend the purpose or grounds of the request during the review process, as long as the basis of the request is not changed.
They also provide a system for submitting supplemental written statements in support of existing arguments.
If you obtain new materials or need to provide additional explanations after filing the request, they can be organized and submitted as a supplemental brief.
This is also within the scope of work that a licensed administrative agent may assist with.
Preparing not only the initial written request but also supplemental written submissions during the review process falls under document preparation work.
What Should I Prepare to Review a BAI Review Request?
If you organize the following five items in advance, the review can proceed more quickly.
- The original disposition notice
- Prior notice, opinion submission materials, and other documents forming the basis of the disposition
- Official letters, emails, civil complaint responses, and other communications exchanged with the disposing agency
- Contracts, photos, CCTV footage, confirmation letters, and other evidence proving the facts
- Registered mail records, electronic document receipt records, or other materials confirming the date you actually became aware of the disposition
The disposition notice and materials confirming the date of receipt are especially important.
They are necessary not only to determine whether the matter is eligible for a review request, but also to assess the exclusion period.
Summary
This article has reviewed the BAI review request as one of the remedies available against administrative dispositions.
A BAI review request is a formal remedy based on Article 43 of the Board of Audit and Inspection Act, and the courts have recognized it as such.
The key points are as follows.
- A BAI review request is a formal remedy based on Article 43 of the Board of Audit and Inspection Act.
- The deadline is 90 days from the date you became aware of the act and 180 days from the date the act occurred, and this period is both an exclusion period and a peremptory period.
- As a rule, the written review request must be submitted through the head of the relevant agency.
- A licensed administrative agent may prepare the written review request.
- However, under the current interpretation of the Ministry of Government Legislation, a licensed administrative agent may not be appointed as a representative.
- The Board of Audit and Inspection has accumulated actual review request decisions, and precedents can be checked when reviewing a case.
However, the following points must also be confirmed.
- Whether your disposition is eligible for a BAI review request
- Whether an administrative appeal or a BAI review request is more appropriate
- How the starting point for calculating the deadline applies in your case
- Whether a BAI review request will be recognized as satisfying the prior administrative remedy requirement for administrative litigation in your case
- Whether document preparation is sufficient, or whether a representative is needed
If you are considering a BAI review request, I can help you find the right direction through a free preliminary review.
Detailed document design and claim strategy analysis are provided through paid consultation.
In the next article, we will analyze actual decisions to see whether dispositions have in fact been canceled through BAI review requests.
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