[집행정지][미간행]
[1] Whether there is a legal interest in seeking the suspension of a new technology protection period, where a new technology protection period has been refused after the expiration of the original new technology protection period (negative)
[2] In a case where the time limit to be attached to a license is unreasonably short of the nature of the permitted business, whether such time limit can be deemed as the duration of the license rather than the duration of the license itself (affirmative)
[1] Article 18 of the Construction Technology Management Act, Article 34-2 of the Enforcement Decree of the Construction Technology Management Act, Article 23 of the Administrative Litigation Act / [2] Article 1 of the Administrative Litigation Act
[1] Supreme Court Order 92Du72 dated February 10, 1993 (Gong1993Sang, 996), Supreme Court Order 95Du26 dated June 21, 1995 (Gong1995Ha, 2602), Supreme Court Decision 2000Du5883 Decided April 26, 2002, Supreme Court Decision 2004Du9012 Decided November 25, 2004 / [2] Supreme Court Decision 94Nu1866 Decided November 10, 195 (Gong195Ha, 3930), Supreme Court Decision 2003Du12837 decided March 25, 2004 (Gong2004Ha, 7264 decided April 25, 2004)
Esti Korea Co., Ltd. (Attorneys Kim Sang-sung et al., Counsel for the plaintiff-appellant)
The Minister of Construction and Transportation
Seoul High Court Order 2004Ra71 dated June 30, 2004
The reappeal is dismissed.
1. According to Article 18 of the Construction Technology Management Act and Article 34-2 of the Enforcement Decree of the Construction Technology Management Act (hereinafter referred to as the "Act"), the designation of a new technology shall expire upon the expiration of the protection period, and the person who intends to continue to be protected as a new technology after the expiration of the protection period shall obtain an extension of the protection period. Thus, the validity of the designation of the new technology shall not be deemed to continue until the applicant has received a rejection disposition regarding the application for extension even after the expiration of the initial protection period. Thus, even if the validity of the instant disposition rejecting the application for extension of the protection period of the applicant, even if the designation of the new technology is suspended
Thus, even if the validity of the disposition of this case is suspended, there is no recourse to prevent the damage suffered by the applicant due to the disposition of this case, and therefore, the application of this case seeking the validity of the disposition of this case is unlawful as there is no benefit (see Supreme Court Order 95Du26, Jun. 21, 1995; Supreme Court Order 92Du72, Feb. 10, 1993, etc.).
The decision of the court below to the same purport is correct, and there is no error in the misapprehension of legal principles as to the suspension of rejection disposition as otherwise alleged in the grounds for
2. In addition, where the effective period of an administrative disposition is generally determined, the administrative disposition shall lose its effect upon the expiration of the permitted period: Provided, That where the permitted period is unreasonably short of the permitted period due to the nature of the permitted business, it may be interpreted as taking into account the revision of the condition by considering the term of the permission not as the duration of the permission itself, but as the term of the condition of the permission. (See Supreme Court Decisions 2003Du12837 delivered on March 25, 2004; 94Nu1866 delivered on November 10, 195, etc.).
However, Article 34-2 (1) of the Enforcement Decree of the Act provides that "the period of protection of new technology shall be the period determined by the Minister of Construction and Transportation within the limit of three years from the date of designation and public notice of new technology." Thus, even considering the nature of the business utilizing the applicant's new technology or the history of amendment to the Enforcement Decree of the Act, the protection period of the previous disposition designating new technology for which the applicant sought an extension of the protection period in this case is the maximum period of three years as provided by the Enforcement Decree of the above Act, and therefore, the ground for re-appeal
3. Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Shin Shin-chul (Presiding Justice)