[석유판매업허가정지처분취소][공1991.6.1,(897),1386]
(a) Whether the provisions of attached Table 1 of Article 9-2(1) of the Enforcement Rule of the Petroleum Business Act, which set the criteria for administrative disposition, such as cancellation of permission for petroleum retail business or suspension of business, are
(b) The case holding that the disposition of the business suspension for 6 months is unlawful as a deviation of discretionary power, on the ground that the petroleum seller sells similar gasoline mixed with the number of actual gasoline of employees; and
A. The provisions of the attached Table 1 of Article 9-2(1) of the Enforcement Rule of the Petroleum Business Act, which set the criteria for administrative disposition such as cancellation of business license or suspension of business under Article 13(3) of the Petroleum Business Act, shall not be deemed to have the nature of the law and regulations, in carrying out the above administrative disposition.
B. The sanctions against the sale, etc. of pseudo petroleum products belong to an administrative agency's binding discretion. Accordingly, in order to revoke permission for a petroleum selling business or suspend the business, the need for public interest should be sufficient to justify the disadvantage of the parties in comparison with the public interest due to the act of violation and the disadvantage of the parties. Thus, it is unlawful in view of the fact that the Plaintiff's act of selling pseudo petroleum products does not include a relatively small amount of light oil mixed and less than 3 hours, and the Plaintiff's act of collecting and disposing of pseudo petroleum products immediately after receiving a report from the actual employee, and the Plaintiff's act of selling pseudo petroleum products continues for 6 months after obtaining permission for the petroleum selling business, and the Plaintiff's act of causing severe economic impact to the Plaintiff without any other act of violation except this case, is subject to the suspension of business for 6 months, which is the maximum period of suspension of business under Article 13 (3) of the Petroleum Business Act during the suspension period of business.
(a)Article 13(1) and Article 13(3)(a) of the Petroleum Business Act; attached Table 1(b) of Article 9bis(1) of the Enforcement Rule of the same Act; Article 22 of the Petroleum Business Act; Article 27 of the Administrative Litigation Act;
가.나. 대법원 1990.9.28. 선고 90누2567 판결(공1990,2191) 1991.4.9. 선고 91누339 판결(동지) 가. 1990.4.10. 선고 90누271 판결(공1990,1074) 나. 1990.3.13. 선고 90누516 판결(공1990ㅡ901)
Attorney Park Jong-soo et al., Counsel for the defendant-appellant
Busan City Mayor (Attorney Lee Jae-ho et al., Counsel for defendant-appellant)
Seoul High Court Decision 89Gu11840 delivered on July 3, 1990
The appeal is dismissed.
The costs of appeal shall be assessed against the defendant.
We examine the grounds of appeal.
1. According to Article 13(3) of the Petroleum Business Act, when a petroleum retailer falls under any of the following subparagraphs, the Minister of Power and Resources Affairs may cancel business permission or order the suspension of business for a fixed period not exceeding 6 months. Thus, Article 9(2)1 of the Enforcement Rule of the same Act, which set the criteria for administrative disposition, set the criteria for exercising authority within the administrative agency, shall not be deemed to have the nature of the law and regulations (see Supreme Court Decision 90Nu271 delivered on April 10, 199; Supreme Court Decision 90Nu2567 delivered on September 28, 190). The decision of the court below to the same purport is just, and it is not erroneous in the misapprehension of legal principles as to the enforcement rules of the Petroleum Business Act as pointed out.
2. Sanctions against sales, etc. of pseudo petroleum products under Articles 13(3)6, 13(1)10, and 22 of the Petroleum Business Act are limited to an administrative agency’s act of binding discretion. Accordingly, in order to revoke permission for a petroleum sales business or suspend a business, a public interest need need to be justified by comparing the public interest due to the act of violation with the disadvantage of the parties, depending on the content and degree of the act of violation (see, e.g., Supreme Court Decision 90Nu2567, supra)
According to the reasoning of the judgment below, the court below held that the court below erred in the misapprehension of legal principles as to the profit-making principle of a bridge, since it violated the principle of discretionary authority, since the plaintiff's loss incurred by the plaintiff is much more than 3 hours than the realization of the public interest purpose of Article 13 (3) of the Petroleum Business Act, and it did not err in the misapprehension of legal principles as to the abuse of discretionary authority, since the plaintiff's act of collecting and disposing of the similar gasoline in this case, after obtaining permission for the petroleum selling business on January 14, 1986. If the suspension of business continues for six months, it is difficult to recover the credit account from the customer and the loan repayment, etc., the plaintiff suffered severe economic impact, considering the above circumstances, the suspension of business for six months, the maximum period of the suspension of business of Article 13 (3) of the Petroleum Business Act, which is the maximum period, is more than the realization of the public interest purpose by the Petroleum Business Act.
3. Therefore, the appeal shall be dismissed and all costs of appeal shall be assessed against the losing party. It is so decided as per Disposition by the assent of all participating judges.
Justices Kim Jong-soo (Presiding Justice)