[2] Where the Seoul Metropolitan Government Agricultural and Fishery Products Corporation, which was delegated or entrusted with the affairs of managing the wholesale market by the head of the Seoul Metropolitan Government who established the wholesale market, issued a warning to Gap corporation, etc., which is an intermediary wholesaler, on the ground that the intermediate wholesaler interferes with the participation of another intermediary wholesaler in trading, the case holding that the party to the delegation of authority is the above corporation and the president of the Seoul

1. Regarding ground of appeal No. 1

A. Article 104(2) of the Local Autonomy Act provides that the head of a local government may delegate or entrust part of the administrative affairs under his/her authority to the competent local government, public organization, or its agency (including its office and branch office) as prescribed by municipal ordinances or municipal rules. Article 17 of the former Act on Distribution and Price Stabilization of Agricultural and Fishery Products (Amended by Act No. 11349, Feb. 22, 2012; hereinafter “Agricultural Stabilization Act”) provides that a wholesale market shall be established by the Special Metropolitan City, as prescribed by Presidential Decree. Article 21 of the same Act provides that a person who sets up a wholesale market may designate a local public corporation under the Local Public Enterprises Act as a market manager to manage the relevant wholesale market by determining the scope of affairs concerning the management of facilities, trade order, and guidance and supervision of persons engaged in distribution of agricultural and fishery products. Meanwhile, in order to ensure the smooth distribution of agricultural and fishery products and maintain appropriate prices to contribute to the stability of people’s lives, the purpose of this Ordinance is to guide and supervise the establishment and operation of the Seoul Metropolitan Government.

In full view of the above provisions of the Local Autonomy Act and municipal ordinances, the defendant corporation is a public corporation established under the Local Public Enterprises Act to maintain the trade order in the wholesale market of this case established by the Seoul Special Metropolitan City Mayor and to guide and supervise distribution workers, and constitutes a public organization to which part of the affairs under its authority is delegated or entrusted by the Seoul Special Metropolitan City Mayor pursuant to Article 104(2) of the Local Autonomy Act and Article 16 of the Ordinance (see Supreme Court Decision 2005Du3776, Aug. 23, 2007).

B. The lower court rejected the Plaintiffs’ assertion that the instant disposition based on the instant ordinances was unlawful, since the instant ordinances were null and void without delegation of laws and subordinate statutes, which delegated part of the affairs falling under the authority of the head of a local government to the Defendant, a market manager, to the Defendant, who is a market manager, where interfering with the participation of another intermediary wholesaler in trading, are delegated part of the affairs within the authority of the head of a local government to the Defendant, a public organization.

Examining the relevant legal principles and records, the lower court did not err by misapprehending the legal doctrine on the validity of municipal ordinances, contrary to what is alleged in the grounds of appeal, thereby adversely affecting the judgment.

2. Regarding ground of appeal No. 2

The lower court determined that there was no illegality of deviation from or abuse of discretionary power in the instant disposition on the ground that the instant association, where the Plaintiffs or their representative directors are in charge of the president of the association, etc., decided to prohibit the Nonparty from participating in the auction for three days, and that the restriction on participation in auction, which was notified to the members, constitutes “an act that an intermediary wholesaler interferes with the participation in the trade of another intermediary wholesaler,” as provided by Article 25(4) of the Agricultural Stabilization Act, and that insofar as the said measure violates the said provision by resolution of the board of directors of the association in accordance with the articles

Examining the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine on interference with participation in trade under the Agricultural Stabilization Act, contrary to what is alleged in the grounds of appeal.

3. As to the third ground for appeal

The court below held that the disposition of this case is unlawful even if the defendant did not implement the prior notice procedure in the course of this case's disposition of this case, since there is a considerable period of time after giving the defendant an opportunity to investigate the plaintiffs and state his opinion on the violation of Article 26 of the Administrative Procedures Act, the prior notice procedure, which is the prior notice procedure, may be omitted. ② Even without such prior notice, the defect in the procedure is very minor and it is reasonable in that the failure to consider the defect as the independent cause for revocation can avoid an administrative disposition unless the defect in the procedure is likely to affect the substantive judgment of the administrative disposition. ③ Even if the defendant did not notify the plaintiffs of the method for objection under Article 26 of the Administrative Procedures Act, the defect can be deemed as cured if the plaintiffs filed the lawsuit of this case within the filing period, and the defendant can be deemed as cured.

Examining the relevant legal principles and records, the lower court did not err by misapprehending the legal doctrine regarding prior notice of disposition, contrary to what is alleged in the grounds of appeal.

4. As to the legality of the defendant

Article 104(2) of the Local Autonomy Act provides that the head of a local government may delegate or entrust part of the affairs under his/her authority to the competent public organizations, as prescribed by municipal ordinances or municipal rules, and Article 21 of the Agricultural Stabilization Act provides that a person who sets up a wholesale market may designate a local government-invested public corporation as a market manager to perform the affairs of managing the wholesale market. In full view of the above details of the Local Autonomy Act and the Agricultural Stabilization Act, the parties who are delegated or entrusted with the affairs of managing the wholesale market by the head of Seoul Special Metropolitan City are Defendant Corporation and Defendant is only the representative, and even if the Ordinance of this case provides that the Mayor of Seoul Special Metropolitan City entrusts the Defendant with the authority of the disposition, etc. of this case, the party

Therefore, the claim of this case constitutes a case where it is obvious that the plaintiffs erred in designating the defendant, but according to the records, the defendant himself pointed out the defendant as a party, and the plaintiffs' appeal should be dismissed as seen earlier. Thus, the plaintiff's appeal concerning this part is dismissed without reversal of the judgment below.

5. Conclusion

Therefore, all appeals are 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 on the bench.

Justices Lee Ki-taik (Presiding Justice)