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(영문) 대법원 1991. 4. 12. 선고 90누9520 판결

[석유판매업허가취소처분취소][공1991.6.1.(897),1390]

Main Issues

A. In a case where a defect in the beneficial administrative act is due to a party’s concealment or other fraudulent act, whether it would be invoked by the party’s trust interest in the revocation (negative), and whether the administrative agency’s discretionary power is not considered (negative)

(b) The case holding that the revocation of the permission for the business is not an abuse of discretionary power where the person who is not qualified for permission for the business of liquefied petroleum gas sales business lends his name only in order to allow the person to run the business, and he obtains the permission after failing to meet the standards for permission;

Summary of Judgment

A. Even in cases where a disposition authority revokes an administrative disposition on the ground that there is a defect in the administrative disposition, if the disposition is so-called "beneficial administrative act" that provides citizens with rights or interests, the disposition shall be revoked if it is a so-called "beneficial administrative act" and any disadvantage incurred by the cancellation, such as the necessity of the public interest, the right to obtain benefits, protection of trust, and infringement of the stability of legal life, etc., and then may be revoked only where the public interest needs to justify the disadvantage suffered by the parties. However, if the defect in the disposition is caused by the act of filing an application by the abolition of facts or fraudulent methods, it shall be deemed that the party concerned was aware that the benefit from the disposition was illegally acquired, and the possibility of revocation was anticipated. Thus, it shall not be allowed to invoke the benefit of trust in

B. At the time of permission for a liquefied petroleum gas sales business, which is a beneficial disposition against the plaintiff, the plaintiff was eligible to be an applicant determined by the public notice of the defendant Si, but the fact that the plaintiff was not an actual business operator or an unqualified person was lending only the name to allow the above business, and even though it did not meet the standards for permission due to the failure to meet all the consent of neighboring residents, it was discovered that the plaintiff applied for permission with both the consent of the actual business operator and the resident and obtained the permission later, the defect in the disposition is obvious due to the plaintiff's concealment of the fact, and thus, the disposition of revocation of permission for the above

[Reference Provisions]

(a)Article 1 (Administrative Disposition) of the Administrative Litigation Act; Article 27 (2) of the Safety Control and Business Regulation of Liquefied Petroleum Gas Act; Article 3 (4) of the same Act; Article 3 (2) of the Enforcement Decree of the same Act;

Reference Cases

Supreme Court Decision 87Nu939 delivered on February 9, 198 (Gong1988, 535) 88Nu2694 delivered on March 28, 1989 (Gong1989, 693) 89Nu2189 delivered on February 27, 1990 (Gong190, 788)

Plaintiff-Appellant

Attorney Lee Jong-chul et al., Counsel for the defendant-appellant

Defendant-Appellee

[Defendant-Appellee] Defendant 1 and 3 others

Judgment of the lower court

Seoul High Court Decision 90Gu6615 delivered on October 25, 1990

Text

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

Reasons

We examine the grounds of appeal.

1. On November 23, 1989, the court below found that on the ground that the plaintiff applied for permission for a liquefied petroleum sales business on the 2th of the same month, the defendant met the criteria for permission under Article 3 (2) and (4) of the Safety Control and Business Regulation of Liquefied Petroleum Gas Act, and Article 3 (2) of the Enforcement Decree of the same Act, and that the plaintiff permitted the sales business. The plaintiff actually did not intend to operate the above sales business, but did not have resided in the above sales business for more than two years at the time of gold, and it was merely lent the name of the tenant or applicant for permission to allow the above sales business, and that the plaintiff did not obtain the above notification in order to allow the above sales business, and it was just to find that the plaintiff submitted only 58 written consent from 131 neighboring residents who obtained the above notification, and that the plaintiff did not submit the written consent to the remaining residents' transfer to other residents, and it did not err in the law by failing to do so for the plaintiff to obtain the permission to permit the above sales business from the plaintiff.

2. Even if the disposition authority revokes an administrative disposition on the ground of defects in the administrative disposition, if the disposition is so-called beneficial administrative act that gives citizens the rights or interests, the disposition should be revoked, and it is so-called theory that it can be revoked only if it is so strong that the public interest needs to be justified (see Supreme Court Decision 85Nu64, Feb. 25, 1986; Supreme Court Decision 83Nu584, Oct. 14, 1986; 89Nu2189, Feb. 27, 199; 989, Feb. 27, 199). Since the plaintiff's defect in the disposition is a so-called beneficial administrative act that grants citizens the rights or interests, it is expected that the interests arising from the disposition were acquired by the party, and it is also probable that the plaintiff's above disposition was not subject to an abuse of discretion by the administrative authority, 98Da2989, Sept. 29, 198.

In addition, as above, the name-titled facts (as to the absence of written consent from March 8, 1990 to March 20 of the same year, even though the defendant demanded to supplement the written consent from March 8, 1990, the defendant failed to submit the written consent from 22 persons until March 20 of the same year, and as long as the permission of this case was cancelled for one of the reasons, the defendant's order to supplement is not sufficient to supplement the written consent from the plaintiff, and therefore, it cannot be justified for the reason that the defendant did not issue an order to supplement the written consent from the plaintiff. All arguments are groundless.

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 Lee Woo-soo (Presiding Justice)

심급 사건
-서울고등법원 1990.10.25.선고 90구6615