[창업사업계획승인신청불승인처분취소][미간행]
In a case where Gap corporation filed an application for approval of its business plan for small and medium enterprises establishment with the content that it would build a factory building and a subsidiary building for manufacturing food, but the competent Mayor did not approve the application after 30 days from the date of approval, the case affirming the judgment below that the above business plan shall be deemed approved on the ground that the 20 days, which is the period of approval of its business plan under Article 33 (3) of the Support for Small and Medium Enterprise Establishment Act, includes the period of approval and permission under other Acts deemed to include the period of approval.
Articles 33(3) and 35 of the Support for Small and Medium Enterprise Establishment Act, Article 24(1) of the Enforcement Decree of the Support for Small and Medium Enterprise Establishment Act
Jink Co., Ltd. (Attorney Lee Jae-ju, Counsel for the plaintiff-appellant)
[Defendant-Appellee] Plaintiff (Attorney Kim Sung-hee, Counsel for defendant-appellee)
Gwangju High Court ( Jeonju) Decision 2012Nu466 decided September 24, 2012
The appeal is dismissed. The costs of appeal are assessed against the defendant.
The grounds of appeal are examined.
1. Regarding ground of appeal No. 1
According to the reasoning of the judgment below, the court below held that the purpose of Article 33 (3) of the Support for Small and Medium Enterprise Establishment Act provides that the head of a Si/Gun/Gu shall notify whether to grant approval within 20 days from the date of receipt of an application for approval for a business start-up plan, and if he fails to notify whether to grant approval within 20 days, it shall be deemed that the date following the 20 days after the date of receipt of the application for approval for a business start-up plan is approved. The court below held that the defendant's application period for a permit to convert mountainous district in the attached Form 3 pursuant to Article 10 (1) of the Enforcement Rule of the Management of Mountainous Districts Act is to promote the establishment of a sound industrial structure through the sound development of small and medium enterprises by compelling the simplification and prompt processing of the procedures for approval of a business start-up plan, and that the application period for a permit to convert mountainous district in the attached Form 3 is 25 days from the date of receipt of an approval for a business start-up plan within 20 days from the date of approval.
Examining the relevant Acts and subordinate statutes and the guidelines for integrated business management regarding the approval of business start-up plans (Notice No. 2008-41 of the Small and Medium Business Administration) in light of the contents and intent of the guidelines, such determination by the court below is just and there is no error of law by misapprehending the legal principles on the approval period of business start-up plans
2. Regarding ground of appeal No. 2
In light of the circumstances stated in its holding, the lower court determined that the non-approval disposition of this case was an error of deviation from or abuse of discretionary power, and such determination of the lower court was based on the assumption that the non-approval disposition of this case was made within the approval period of the business start-up business plan. As seen earlier, insofar as it should be deemed that the non-approval disposition of this case was deemed to have been made within the approval period of the business start-up business plan, the Defendant did not notify the Plaintiff within 20 days from the date on which the Defendant received the application for the approval of the business start-up business plan of this case, and thus, it does not affect the conclusion of the judgment. Therefore, the lower court’s determination
3. Conclusion
Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Kim Yong-deok (Presiding Justice)