[종합주류도매업면허취소처분취소][공1996.10.15.(20),3032]
[1] In an appeal litigation, the scope of grounds which the agency can claim as grounds for disposition different from those which are grounds for the initial disposition
[2] The case holding that in an appeal litigation against a disposition of revocation based on the items of non-data sales and disguised transactions under subparagraph 6 among the conditions of designation of alcoholic beverage licenses, the sales of alcoholic beverages to a non-licensed seller under subparagraph 2 of the designation conditions cannot be asserted as the grounds for revocation
[1] In an appeal seeking the revocation of an administrative disposition, the agency may add or change other grounds only to the extent that the basic factual basis of the original disposition is identical to that of the original disposition, and it is not allowed to assert as the grounds for disposition on the ground that there is a separate fact that is not recognized as identical to the basic factual basis.
[2] The case holding that in an appeal litigation against the revocation of a license based on the items of non-data sales and disguised transaction under subparagraph 6 among the conditions of designation of alcoholic beverage licenses, the basic factual relations are different from those of the grounds for the revocation of a new alcoholic beverage sales to a non-licensed seller under subparagraph 2 of the conditions, and thus, it is not permissible
[1] Articles 26 and 27 of the Administrative Litigation Act / [2] Articles 26 and 27 of the Administrative Litigation Act
[1] Supreme Court Decision 88Nu9299 delivered on December 8, 1989 (Gong1990, 270) Supreme Court Decision 94Nu9368 delivered on September 23, 1994 (Gong1994Ha, 287) Supreme Court Decision 95Nu4704 delivered on October 12, 1995 (Gong195Ha, 3798)
Do Space Sales Co., Ltd. (Attorney Kim Jae-chul, Counsel for the defendant-appellant)
Head of Seocho Tax Office
Seoul High Court Decision 94Gu21797 delivered on April 12, 1996
The appeal is dismissed. The costs of appeal are assessed against the defendant.
The grounds of appeal by the defendant litigant are examined.
In an appeal litigation seeking the revocation of an administrative disposition, a disposition agency may add or change other reasons only to the extent that the original reason and basic facts are identical to those of the original disposition, and it is a consistent view of the party members’ consistent opinion that it is not allowed to assert as grounds for disposition on the grounds that separate facts are not recognized identical to the basic facts (see, e.g., Supreme Court Decisions 85Nu694, Jul. 21, 1987; 88Nu6160, Jun. 27, 1989; 88Nu929, Dec. 8, 1989). According to the facts duly established by the court below, the defendant is not entitled to revoke the above license on the grounds that the plaintiff’s non-data sales and disguised transaction amount constitute more than 20/100 of the total sales amount of alcoholic beverages by taxable period under subparagraph 6 of the designation condition attached to the liquor of this case, and thus, the defendant's aforementioned grounds for revocation can not be viewed as grounds for revocation of license.
In addition, since it is apparent in the record that the additional or modified reason of this case was not specified in the initial disposition, there is no reason to discuss it against it, and it cannot be deemed that it is identical to the original reason of disposition on the ground that it had already existed at the time of disposition and the parties had been aware of such fact (see Supreme Court Decision 91Nu3895 delivered on February 14, 192, 1992). Therefore, it cannot be accepted as an independent opinion against this.
Ultimately, the decision of the court below to the same purport is just, and it cannot be deemed that there was an error in the misapprehension of legal principles as to the additional change in the grounds for revocation of administrative disposition, such as the theory of lawsuit, or in the misconception of facts due to abuse of fact-finding authority.
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 Cho Chang-tae (Presiding Justice)