The main text of Article 23(2) of the Administrative Litigation Act provides that "where a revocation lawsuit is instituted, if it is deemed urgently necessary to prevent irrevocable damage caused by a disposition, etc. or execution thereof or by the continuation of procedures, the court in which the merits are pending may decide to suspend the effect, enforcement thereof or the continuation of procedures, upon request of a party or ex officio, in whole or in part, of the disposition, etc., or of the execution thereof or of the continuation of procedures."

2. Whether it is deemed necessary to prevent irrecoverable damage;

A. Relevant legal principles

"A loss difficult to recover", which is a requirement for the suspension of validity under Article 23 (2) of the Administrative Litigation Act, means a loss that cannot be compensated in money, barring any special circumstance, and where monetary compensation is impossible, monetary compensation refers to a type and intangible loss where the party against whom an administrative disposition was taken cannot with reference or with reference is considerably difficult. In addition, whether there is "emergency necessity to prevent irrecoverable damage from being caused by the disposition, its execution or the continuation of procedure" should be determined individually and individually by comprehensively taking into account not only the nature, form, and content of the disposition, the nature and degree of the damage suffered by the other party to the disposition, the method of restitution and compensation, the degree of winning the claim (see, e.g., Supreme Court Order 97Du3, Feb. 26, 1997; Supreme Court Order 2003Du41, May 12, 2004).

(b) Fact of recognition;

소갑 제4, 6, 7, 15, 24, 28, 32, 35 내지 37호증(가지번호 있는 것은 가지번호 포함, 이하 같다)의 각 기재 및 영상과 심문결과를 종합하면, ① 유진기업 주식회사(이하 '유진기업'이라 한다)가 2018. 1. 16. ACE HARDWARE INTERNATIONAL HOLDINGS, LTD. 및 ACE HARDWARE INTERNATIONAL COOPERATIEF U.A.(이하 위 두 회사를 통틀어 '에이스'라 한다)와 에이스로부터 국내에서 '에이스'라는 상호로 소매점을 개설하여 인테리어 용품, 건축용 자재, 공구류 등을 판매하는 사업(이하 '이 사건 사업'이라 한다)을 영위할 권리 등을 부여받고 그에 대한 대가로 에이스에 연간 사용권료 미화 50,000달러 등을 지급하기로 하는 내용의 계약(이하 '이 사건 계약'이라 한다)을 체결한 사실, ② 신청인이 2018. 2. 28. 유진기업과 유진기업으로부터 이 사건 사업과 관련된 권리, 의무, 자산을 포괄적으로 인수하며 그에 대한 대가로 유진기업에 순자산(= 자산 - 부채) 양수대금 1,464,536,190원과 추후 자산변동 상황을 반영하여 산정한 조정정 산금을 지급하기로 하는 내용의 계약을 체결한 사실, ③ 신청인이 2018. 3. 30. 유진기업과 조정 정산금을 1,762,620,688원으로 정하기로 합의한 사실, ④ 이에 따라 신청인이 유진기업에 순자산 양수대금과 조정 정산금 합계 약 3,200,000,000원을 지급한 사실, 신청인이 '에이스 홈센터 서울 금천점'(이하 '이 사건 점포'라 한다)을 개설·운영하기 위해 2018. 2. 28. 유진기업과 유진기업으로부터 서울 금천구 시흥대로 396 (독산동) 토지(이하 '이 사건 토지'라 한다)를 전대차보증금 200,000,000원 및 월 차임 39,000,000원에 전차하고, 이 사건 토지 지상 3층 건물(이하 '이 사건 건물'이라 한다)을 임대차보증금 1,850,000,000원에 임차하기로 하는 내용의 계약을 체결한 사실, ⑤) 신청인이 이 사건 점포 내부 공사와 상품 구매 및 진열을 완료하고 근로자들을 고용하여 이 사건 점포 개점준비를 완료한 사실, ⑦ 이 사건 계약에는 '불가항력으로 ACE 점포 운영이 불가능하게 될 경우 일방당사자가 일방적으로 계약을 해지할 수 있다'는 조항이 규정되어 있는 사실, ⑧ 에이스가 2018. 3. 6. 피신청인 등에게 이 사건 점포 개점을 3년 간연기하는 이 사건 처분이 이루어질 경우 이 사건 점포 개점 자체가 취소될 가능성이 있다는 취지의 의견서를 발송하였고, 2018. 5. 1. 주한 미국 A에게 이 사건 처분과 같은 규제로 인해 향후 대한민국에 대한 투자가 지속될 수 있을지 의문이라는 취지의 의견서를 발송한 사실, ④ 2018. 3. 31. 기준 신청인의 순자산은 24,123,792,142원(= 자산29,268,193,044원 - 부채 5,144,400,902원)인 사실을 각 인정할 수 있다.다. 판단

Comprehensively taking account of the following circumstances revealed through each of the above facts and the results of the examination, it may be recognized that the instant disposition that allowed the postponement of the opening point of the instant store for a period of three years may cause irrecoverable damage to the applicant, and there is also an urgent need to suspend the validity of the instant disposition in order to prevent such occurrence.

1) The instant contract provides that “If the operation of the ACE store becomes impossible due to force majeure, one of the parties may unilaterally terminate the contract.” The E is expressed that if the opening of the instant store is postponed for three years due to the instant disposition, not only the opening of the instant store, but also the investment itself in the Republic of Korea, may be revoked. As such, E.S. may terminate the instant contract on the ground of the instant disposition, and E.S. may not operate the instant business itself, not only the opening of the instant store, but also the instant business itself, because it is possible for E.S. to become extinct. The damage that the business itself cannot be operated is a damage for which monetary compensation is impossible, and constitutes a damage that is difficult for the parties to the social concept or significantly difficult for referring to.

2) In addition, when the instant project becomes wrecked, the applicant may not recover the wages paid to the Jined Company in return for the acquisition of the right related to the instant project, etc., and the wages paid to the employees employed to run the instant project, and in addition, where the said employees are dismissed, the applicant should additionally pay the retirement allowances to the said employees.

If such loss is caused by more than 10% of the net assets, the applicant has no choice but to meet the important managerial crisis, and even if the nature or form falls under the property damage, it constitutes a damage that is difficult for the party to refer to or is considerably difficult to refer to.

3) Even if the applicant is able to operate the store of this case after three years since the contract of this case was not terminated, the applicant is not able to use the store of this case for the purpose of the sale of this case, i.e., losses equivalent to 1,404,00,000 won (=36 months x 46 months). ② The amount equivalent to the interest that the applicant would have to pay to the financial institution, etc. or the amount equivalent to the deposit for the building of this case is 15,95,000 won (i.e., the amount equivalent to the interest that the applicant would have to receive when he borrowed the lease deposit of this case from the financial institution, etc., or the amount equivalent to the deposit for the building of this case is 1,850,000 won (the X 1,000,000 won) and then the applicant would have to receive more than 00 U.S. dollars for the purpose of the sale of this case.

5) The applicant is unable to open the store of this case due to the instant disposition even after completing the preparation for opening the store of this case. In order to prevent the applicant’s above damages, there is no other appropriate method than suspending the validity of the instant disposition.

3. Whether it is likely to have a significant impact on public welfare;

A. Respondent's assertion

If the disposition of this case is suspended, it is anticipated that the sales of the shop occupants will be reduced rapidly due to the opening of the store of this case. Accordingly, the suspension of the disposition of this case is not allowed pursuant to Article 23(3) of the Administrative Litigation Act.

B. Relevant legal principles

"The possibility of seriously affecting the public welfare" as a obstacle of the suspension of validity as stipulated in Article 23 (3) of the Administrative Litigation Act refers to not to the possibility of infringing the general and abstract public interest, but to the specific and individual public interest related to the disposition in question, which is likely to seriously harm the specific and individual public interest, and the burden of asserting and indicating the passive requirements of the suspension of validity is against the administrative agency (see, e.g., Supreme Court Order 2003Ma41, May 12, 2004; Supreme Court Order 2007Ma147, May 6, 2008).

C. Determination

In light of the fact that the store and the market distribution store of this case are located far from approximately 2.6 km in a straight line (see the No. 2-1 of the No. 1 of the No. 2), it seems that there is no research result that the sales of shop occupants of the Incheon Industrial Goods Distribution Center located adjacent to the Home CC Incheon store were reduced due to the opening of the home CC Incheon store, and that there is no interest in the purchase of the usual tegry products or the purchase of the tegry products, etc., or that consumers who did not feel the need to visit the city of Geumcheon-gu or Singu with the opening of the store of this case, visit the Do and Singu, Geumcheon-gu, Seoul and Singu, with the opening of the store of this case (see the No. 2-1 of the No. 1 of the No. 1 of the No. 1 of the No. 1 of the No. 1 of the No. 1 of the No. 1 of the No. 2 of the No. 2 of the No. 01 of the 01 of the sale.

Therefore, the respondent who is responsible for proving whether the suspension of the disposition of this case is likely to have a significant impact on public welfare due to the suspension of the disposition of this case shall not only make an abstract assertion that the sales of the shop occupants would be reduced rapidly due to the opening of the store of this case, but also make an objective explanation through objective evidence. ① The current market sale of the shop occupants is much high, ② whether the market sale of each individual product of the shop occupants is likely to be reduced due to the opening of the store of this case, ③ whether the market sale of this case is likely to be reduced due to the shop opening of the store of this case, ③ whether the reduction rate is high, ④ even if the applicant receives a proposal of mediation presented by the applicant, it shall

However, the Respondent's report on the fact-finding survey on damage to small and medium-sized merchants (Evidence 2 of the lawsuit) prepared by the Respondent, which is the only supporting material in fact submitted by the Respondent, is long, and without properly examining whether there is no change in the sales reduction rate even if the Claimant has received a proposal of mediation presented by the Claimant, it is derived only from the questionnaire that the monthly average sales of the market occupants in the market are reduced by 8,750,901,00 won (=284,05,000 won in the wholesale company + 8,145,837,000 won in the retail company + average 321,059,000 won in the month of the delivery company) due to the opening of the store in this case.

It is difficult to conclude that the survey has objectivity because the shop occupants are parties to the application for business coordination, and the Small and Medium Business Research Institute of Small and Medium Enterprises reply to the question of ‘Ne' that if the shop opening in this case, ‘the intention to use the store in this case?’, it is reasonable to conclude that the shop occupants will no longer use the shop in this case. However, the above consumer’s answer is sufficient to interpret that the shop opening in this case, or that it would use the store in this case and the market in this case, with the intention to simultaneously use the store in this case. In full view of the above conclusion, the above fact-finding report alone is insufficient to recognize that there is a logical error, and there is no other evidence to support that the market occupants in this conclusion should reduce the sales of the shop in this case due to the opening of the store in this case.

Therefore, we cannot accept the respondent's argument that the validity of the disposition of this case is not allowed under Article 23 (3) of the Administrative Litigation Act.

4. Conclusion

Ultimately, there is no evidence to prove that there is an urgent need to prevent irrecoverable damage caused by the instant disposition, but there is no reason to request the merits or that there is no possibility of significant impact on public welfare due to the suspension of the validity of the instant disposition. Therefore, it is decided as per Disposition with the applicant’s acceptance of the instant application.

May 30, 2018

Judges Slocks

Judges Kang Jae-sung

Since it cannot be confirmed that the annual interest rate applicable to receiving a loan from the public official can not be confirmed, a provisional application is made.

this year as applied to borrowing 50,000,000 won from the Bank of Korea by Dongyang, a parent company of such person

Rate 2.81% [refer to the disclosure of the Electronic Publication System (DDAT)] of the Financial Supervisory Service shall be the annual interest rate applied to the applicant.

2) The applicant’s operating profit for the three-year operating income of the instant store. The respondent shall normally operate the instant store.

In the case, the applicant shall have the monthly average sales of the shop occupants at the Si Public Interest and Distribution Complex to the extent that the monthly average sales of the shop occupants are reduced or decreased to 8,750,901,00

The respondent argues that it would be able to make a huge sales, and the respondent may conduct a business for a period of three years at the store of this case.

It seems that the position seems that profits will exceed 1,420,000 won.