창업사업계획승인취소처분취소
The judgment below is reversed, and the case is remanded to Busan High Court.
The grounds of appeal are examined.
1. According to Article 37(1) of the Support for Small and Medium Enterprise Establishment Act (amended by Act No. 12009, Aug. 6, 2013; hereinafter the same) and Article 27(1) and (2) of the Enforcement Decree of the Support for Small and Medium Enterprise Establishment Act, the head of a Si/Gun/Gu grants discretionary power to administrative agencies as to the revocation of approval of a business plan, by providing that: (a) a person who has obtained approval of a business plan fails to start a factory within three years after obtaining approval of the business plan; (b) a person who has suspended construction for at least one year after the commencement of a factory; or (c) a person who fails to complete a factory construction within four years after obtaining approval of the business plan may cancel approval
On the other hand, the judicial review of discretionary acts is limited to whether there is deviation or abuse of discretionary power, taking into account the room for the public interest judgment by the discretion of the administrative agency, and the examination of abuse of discretionary power is subject to determination of mistake of facts, violation of the principle of proportionality, etc.
(2) On December 13, 2012, the lower court: (a) based on evidence; (b) filed an application with the Defendant for approval to establish a new factory on March 21, 2008 (hereinafter “instant business plan”); (c) obtained approval of the instant business plan under Article 33 of the Support for Small and Medium Enterprise Establishment Act from the Defendant on May 9, 2008; and (d) failed to implement a new construction of a factory pursuant to the instant business plan; and (c) the Defendant failed to start the construction of a new factory on April 8, 201, within three years from the date the business plan was approved; or (d) where construction was suspended for more than one year after the commencement of construction on April 8, 2011, if construction was not completed within four years after the approval of the business plan.