All citizens are entitled to the “Request for Examination” by the BAI when their rights or interests are infringed by the violation of laws or unjust behavior by administrative agencies.

Request for Examination by the BAI is one of the rights protection measures where unfair or unjust behaviors of administrative agencies result in disadvantages to the other party, and the BAI examines whether such behaviors are just or unjust. This is carried out independently from the government, based on the BAI’s main responsibilities of auditing the accounts of administrative agencies and inspecting official actions of public officials. If such behaviors are proved unjust, the BAI notifies the government body concerned to take necessary steps to correct such behaviors, thereby ultimately protecting the rights of citizens.

In particular, in the case of national taxes filing for an administrative litigation is possible only when the party concerned chooses and takes action on one of the following: namely, Request for Examination by the National Tax Office, Request for Adjudgment by the National Tax Tribunal or Request for Examination by the BAI. (Para 2, Article 56, Basic National Tax Act)

Pertaining to cases subject to request for examination by the BAI and qualified requesters, the Board of Audit and Inspection Act stipulates that “An interested person in connection with the official actions, duties, other behaviors of a person subject to audit and inspection of the BAI may request an examination by the BAI.” (Para 1, Article 43, BAI Act)

Entities subject to audit and inspection by the BAI

Entities subject to audit and inspection by the BAI refer to those who are subject to account audit and inspection of the duties of public officials, which are the main functions of the BAI. Thus actions of entities subject to audit by the BAI under the Board of Audit and Inspection Act, including not only State agencies, such as administrative, legislative and judicial agencies, and provincial and local governments, but also various organizations such as government-invested organizations, are in principle subject to request for examination by the BAI.

Yet, all entities subject to audit and inspection are not necessarily entities subject to both account audit and inspection of duties; thus for entities subject to only account audits, they are subject to request for examination only in the areas account audit.

For instance, in the case of the National Assembly Secretariat and the Ministry of Court Administration, they are not subject to inspection of duties of public officials, thus in cases where successful bidders are decided unjustly for example in awarding contracts for construction, only duties pertaining to account audit are subject to request for examination.

Official actions, duties or other behaviors

Only official actions and duties are subject to request for examination; thus private individual actions carried out with no connection with official actions and duties are not subject to request for examination, even though they may have resulted in infringement of rights or interests.

Scope of official actions, duties or other behaviors include not only administrative actions but also factual measures in terms of rights, nonperformance (when the requester has a right for application under laws and legal interpretation and the authorities concerned did not perform any examination despite considerable lapse of time since the application was filed by the requester),and contracts under the public law.

An interested person: qualified requester

Natural persons or corporations who have legal interest to seek cancellation or change over official actions, duties or other behaviors by administrative agencies, namely, those whose rights are limited and whose obligation is generated due to such actions, are all entitled to make a request for examination. Thus, those who lose simply reflective interest, which corresponds to factual interest, have no right to make a request for examination.

When making a request for examination, the requester can select his or her proxy from among

• ① spouse, immediate family members, or siblings of the requester,
• ② executives or employees of a corporation(including associations and foundations other than corporations), which is the requester
• ③ Those who can proxy applications for objection, including putting in a demurrer or filing for adjudgment in accordance with other regulations (lawyers, certified public accountants, licensed tax accounts, etc.).

In cases where the requester selects a proxy, a letter of proxy and certificate of seal impression of the requester should be attached when making a request for examination. When the requester is a group, a representative may be selected and a request made for examination. In that case also, a letter of proxy and certificate of seal impression should be attached in making a request for examination.

The BAI Act stipulates regarding the period during which examination request may be made that “An interested person shall submit a claim within 90 days from the day when he learned of the causal action for the claim and within 180 days from the day when the causal action took place.” (Para 1, Article 44, BAI Act)

The “day when he learned of the causal action” refers to the day when an interested person learned that certain causal action had taken place and does not mean the day when he learned of concrete details of the action. Thus, customarily the period of exclusion is calculated from the day when he received a notice from an administrative agency (in the case of taxation, the day when he received a tax notification). And the “day when the causal action took place” refers to the day “when certain action took place.” However, customarily details of actions subject to examination request are notified to the interested party. Thus, it is only in extremely rare cases where the 180-day period from the day when the causal action took place is applied.

The period of exclusion is fixed and thus cannot be extended or reduced arbitrarily. And the period is calculated on a daily basis, so if a person receives an administrative notice on March 10, 2003, the person may file a claim by June 8, 2003, after 90 days have elapsed. Whether the period of exclusion has elapsed or not is decided on the basis of the day when the request form was filed with the relevant agency as a starting point. (Para 2, Article 10, BAI Deliberation Regulations)

Request for examination shall be made by filing a written claim which includes the purport (e.g. ooo (name) cancels --- actions done to ooo on ---- (date)) and reason for the claim (legal and actual account which support the claim purport and actual relations) with name and seal impression and be presented along with attachment of evidence documents to the pertinent agency (the agency that has performed an act for which a claim is filed).

However, a direct claim may be filed with the BAI without being submitted via the pertinent agency, in cases where the head of the relevant agency who has received the written application does not deliver it to the BAI within one month after the receipt.
The head of the relevant agency reviews the received claim and if he or she considers that the claim has validity, the agency corrects it on its own, and when he or she considers a claim to be invalid, the agency sends a written decision on the claim to the BAI through the chief of the central administrative agency. Upon examination (in principle, a documentary examination is conducted) of the claim, when the BAI considers that the claim has validity, the BAI acknowledges the claim and demands that the relevant agency takes orrective measures, and when it consider a claim to be invalid, the BAI dismiss it and notifies the result to the person who has filed the claim or his or her proxy.

If the claimant does not agree with the decision, as long as the entities subject to the examination are subject to administrative litigation, he or she may file an administrative litigation against the agency concerned as a party within 90 days of receipt of notification of the decision concerned. In addition, the claimant who has filed a claim may apply to the BAI for withdrawal of the examination until the decision is made on the claim.

The BAI rejects a claim, in principle, and does not conduct a deliberation on the matter when it does not satisfy the requirements and procedures designated by regulations. However, when the deficiency may be corrected, the BAI may set the correction period and demand correction to the claimant.

Cases where the BAI rejects a claim

• ① When the subject of the claim does not fall under the categories of official actions, duties or other behaviors of entities subject to audit and inspection by the BAI.
• ② When the claimant is not an interested person concerning official actions, duties or other behaviors.
• ③ When the claim is filed after the expiry of the period of exclusion.
• ④ In the case of matters where adjudication of administrative litigation pursuant to the Administrative Litigation Act
  (including administrative litigation procedures pursuant to regulations of other acts) is given
  (yet, the case of rejection adjudication is excluded). In particular, in the case of national taxation, when a taxpayer files an objection claim with the tax office, the relevant agency, and receives the adjudication, he or she may request a deliberation by the National Tax Office or adjudication by the National Tax Tribunal, yet they may not file a claim for deliberation by the BAI.Thus, when the claimant requests an examination by the BAI after deciding on filing an objection claim, it is subject to rejection.
• ⑤ When a claim is filed on a matter which has been filed for litigation
  (including cases where litigation is filed during deliberation of the claim)
• ⑥ Cases when the claim does not satisfy the requirements and procedures determined by regulations, including BAI Act.
• ⑦ In the case of ① or ⑥, when the BAI deems the claim may be corrected and set the correction time and demands correction by the claimant, yet he or she did not correct it during the stipulated period.

The BAI Act stipulates that “The claimant, regarding the actions of the chief of an administrative agency which underwent deliberations of the BAI, in accordance with the provisions of Articles 43 and 46, may file an administrative litigation against the agency concerned as a party within 90 days of receipt of notification of the decision concerned.” (Article 46-2, BAI Act)

Objection procedures concerning national tax and local tax

• ① Objection filing procedures are optional procedures, so taxpayers can choose to file an objection However, if taxpayers undertook objection filing procedures, they may choose to request a deliberation by the National Tax Office or adjudication by the National Tax Tribunal, yet they may not file a claim for deliberation by the BAI. (When the claimant requests an examination by the BAI after filing an objection, it is subject to rejection)
• ② National tax adopts the principle that administrative adjudication should take precedence without fail, so the claimant should thus choose one of the three options from among filing a claim for deliberation by the National Tax Office, filing for adjudication by the National Tax Tribunal and filing a claim for deliberation by the BAI, prior to filing an administrative litigation (The claimant may file for deliberation or adjudication without going through filing for objection)
• ③ As for local taxes, the claimant may file for an administrative litigation without going through filing for deliberation or adjudication.