[개인택시운송사업면허취소처분취소][공1990.4.15.(870),788]
Whether a disposition authority may revoke a license without considering the trust interests of the party in case of obtaining a license by concealing the lack of the qualification for a private taxi transport business (affirmative)
If the Plaintiff obtained a license by making an application for a license with hiding it in spite of the absence of a license qualification pursuant to the proviso of Article 15(1) of the Enforcement Rule of the Automobile Transport Business Act because ten years have not passed since the Plaintiff acquired a license for private taxi transport business in the past, the license is a defective disposition against an unqualified person, and even if there is no other legal basis, the disposition can be cancelled by the disposition agency himself/herself. In this case, if the disposition is a so-called beneficial administrative act granting the right or interest, it shall be canceled only when it is highly strong to justify the disadvantage of the parties to the public interest, such as the necessity of public interest, protection of trust and infringement of legal safety, etc.
Article 1 [General Administrative Disposition] (General Disposition) Article 31 of the Automobile Transport Business Act, the proviso of Article 15 (1) of the Enforcement Rule of the same Act
[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Domin, Attorneys Park Jae-soo and 1 other, Counsel for plaintiff-appellant-appellant-appellant-appellant-appellant-appellant-Appellee)
Gangwon-do Attorney Jung-dae et al., Counsel for the defendant-appellant
Sung-nam City Law Firm Lee Jae-ho, Counsel for defendant-appellant
Seoul High Court Decision 88Gu3002 delivered on February 20, 1989
The appeal is dismissed.
The costs of appeal are assessed against the plaintiff.
The Plaintiff’s attorney’s grounds of appeal are examined.
If a disposition agency that has conducted an administrative act finds a defect inherent in the act, it can cancel the act on its own without a separate legal basis, and according to the facts duly confirmed by the court below, the plaintiff has not been 10 years since it acquired a previous personal taxi transportation business license and transferred it, and it has been granted a license by applying for a hidden bond, notwithstanding the fact that it does not have a license qualification pursuant to the proviso of Article 15(1) of the Enforcement Rule of the
Therefore, the license disposition is a defective disposition against a person who is not entitled to obtain the license and is subject to the cancellation. Therefore, the conclusion of the judgment of the court below ordering the cancellation is just and the nature of the cancellation of Article 31 (1) 1 of the Automobile Transport Business Act is the same as the theory of the lawsuit, but it does not affect the conclusion of the judgment.
However, even if a disposition is revoked on the ground that there is a defect in an administrative disposition, if the disposition is so-called "beneficial administrative act" that provides citizens with rights or interests, the disposition may be revoked only if it is a strong measure to justify the disadvantage of the party in need of public interest after comparing and comparing the necessity of the public interest, the right to obtain benefits, the protection of trust, and the infringement of the stability of legal life, etc. to be borne by the party due to the revocation. However, if the defect in the disposition is due to the party's act of application through abolition or other fraudulent methods, the party is also expected to know that the benefit from the disposition was illegally acquired, so it is not possible for the party to invoke the trust interest in the above disposition, and even if the administrative agency did not consider it, it shall not be an abuse of discretionary power (see Supreme Court Decision 81Nu67, Jul. 27, 1982; 84Nu2000, Dec. 26, 1984; 28Nu37, May 27, 1985).
However, according to each entry of evidence Nos. 2-6 and 9 (License Book) as employed by the court below, it is clear that the plaintiff intentionally concealed the fact that 10 years have not elapsed since the previous license transfer date by concealing the acquisition and transfer of the previous license and making a false entry of the fact that he had worked in the Dong Transport Corporation from Nov. 1, 1972 to Mar. 3, 198, even though he operated a taxi transport business after obtaining a private taxi transport business license on Apr. 12, 1978 and transferred the above license to another person on Mar. 22, 1980.
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 Kim Sang-won (Presiding Justice) Lee Jong-won (Presiding Justice)