(영문) 서울행정법원 2006.5.16.선고 2006구합64 판결

The defendant's revocation of the approval for CATV broadcasting business as shown in the attached Form 1 against the plaintiff on October 4, 2005 shall be revoked.

Reasons

1. Details of the disposition;

A. On March 18, 2003, the Plaintiff is a CATV broadcasting business operator who operates a CATV broadcasting business with 00 broadcasting zones after obtaining approval for a CATV broadcasting business from the Defendant.

B. On July 27, 2002, the Defendant publicly announced on July 27, 2002 that, under Article 9(3) of the Broadcasting Act, when a CATV relay broadcasting business operator intends to operate a CATV broadcasting business, an application for approval should be filed for necessary approval.

In the above notice, the defendant clearly stated that there may be additional clauses, such as prohibiting shareholders from changing within the approval period (three years) (excluding where the defendant's prior approval is obtained due to unavoidable reasons, such as inheritance, court decision, etc., and where integrating with the general excursion ship transport business operator in the relevant area).

C. Ten persons, including the State0, Kim 00, Lee 00, Lee 00, Kim Kim *, this**, 00, * Ma,00, * Ma, Ma,00, MaMaMaMa** MaMa and △△△△△△△, were organized on August 23, 200 to obtain approval for a CATV broadcasting business from the Defendant, and the constituent shareholders were changed the trade name of *** * Broadcasting into 00 broadcasting companies, and the shareholders agreed not to transfer shares for a period designated by the Defendant, except in special cases after the approval of the business. This is because, upon receipt of an application from the Defendant for approval of the business, the Defendant demanded the said shareholders not to dispose of shares by the expiration date of the approval period.

D. Therefore, on August 29, 2002, the plaintiff and the above 10 shareholders submitted a written oath (No. 6 evidence) to the defendant that they will not dispose of the shares from the passenger to the expiration of the approval period.

E. On November 4, 2002, the Defendant decided the Plaintiff as an enterpriser subject to the approval of the business. To obtain the approval of the business, the Plaintiff received 650 points (1,00 points out of 1,00) or more for each subject of the examination and evaluation, and the Plaintiff received 91 points on September 661. Of the examination points 1,00 points, the Plaintiff was subject to the assessment according to the shareholder composition (10 points), the soundness of investors and executive officers (200 points), the merger and development of cable broadcasting business operators (20 points), the appropriateness of the composition of light-jin and stockholders (60 points), and the financial stability and financing ability (100 points).

F. However, among the plaintiff's 10 shareholders, this** on December 10, 2002, the plaintiff's 10 shareholders, * on December 10, 2002, to the majority shareholders of the △ Mete Broadcasting Co., Ltd., a competitor company with the same broadcasting zone with the plaintiff, hereinafter "Mete Mete Broadcasting"), 478% of the plaintiff's shares 20.478% of the plaintiff's shares, 00, * * 100, * MaMaMa MaMa Ma, and △△△△△ (hereinafter in this case * *).

On December 12, 2002, ‘this** 6 others') sold 32,081% of the total shares of the plaintiff who had their own shares to MaMaMa Ma Ma Ma Ma Ma Ma.

G. On February 11, 2003, the Plaintiff, known of such fact, filed an application for a provisional injunction against stock disposal with the Daejeon District Court 2003Kahap17 against 6 persons, including this***, etc., and filed an objection (2003Kahap23) against the above court.

H. Meanwhile, among the 10 shareholders of the Plaintiff, the Plaintiff sold 47.44% of the Plaintiff’s shares held by 00, Kim 00, Kim 00, Kim * on January 20, 2003 to 00, which he sold to 10 shareholders of the Plaintiff, 47.44% of the Plaintiff’s shares held by her own. Such sale was kept confidential for three years, and the shareholder’s rights were to be exercised according to yellow 00’s intent. Jeju 00 was the Plaintiff’s representative director at the time of the Defendant’s approval. In addition, on January 23, 2003, the Plaintiff held the board of directors on January 23, 200, and increased the capital in the form of a third party’s shares by participating in this So-called Central Cable Broadcasting Business Operator (Broadcast △△), and this Me sold the shares to the said Yellow 200 on January 21, 2003.

I. Meanwhile, on March 18, 2003, the defendant issued a letter of approval to the plaintiff on March 17, 2006, with the effective period until March 17, 2006. The plaintiff's constituent shareholders this**, etc.* the court's decision that the transfer of shares between six members, etc. and MaMa Ma Ma Ma Ma Ma Ma Ma Ma Ma, etc. was effective (the cancellation of approval when the decision of provisional disposition is revoked due to the result of the court's judgment on the objection against the decision of provisional disposition prohibiting disposal of shares, etc.) as a condition for cancellation such as the court's decision.

j. However, on November 14, 2003, the Daejeon District Court: (a) received an objection from six (6) persons such as this case*, etc., and subsequently revoked the provisional disposition and rendered a judgment dismissing the Plaintiff’s application for provisional disposition; (b) although the Plaintiff filed an appeal and a final appeal, the Daejeon High Court rendered a judgment dismissing the appeal at the Daejeon High Court; and (c) upon the Supreme Court’s ruling dismissing the appeal on November 11, 2004, it was confirmed that six (6) persons, including this case*, were valid.

(k) Meanwhile, on August 2, 2004, the Defendant permitted the disposal of shares by shareholders other than the largest shareholders to broadcasting business operators, including the Plaintiff, who received the approval of conversion from relay cable broadcasting business operators to CATV broadcasting business operators (in case where the largest shareholders are changed due to the disposal of shares by minority shareholders, it shall not be permitted).

Other. On October 4, 2005, the Defendant fulfilled the condition of rescission as stated in the Paragraph. The Defendant issued the instant disposition revoking the Plaintiff’s business approval on the ground that: (a) the Plaintiff’s representative director, at the time, concealed the fact about the sale of shares, etc.; and (b) by deceiving the Defendant, received the letter of approval by fraudulent or other unlawful means.

(m) The Plaintiff, on November 14, 2005, held a temporary general meeting of shareholders. However, there was a resolution to accept the instant disposition with the consent of 00, Mere Broadcasting, and 00 (51%) per share (68. 51%).

H. Meanwhile, the above share sales contract of 100, 100, 200, 100, 100, 100 and 100 was terminated on May 7, 2003 due to a dispute over the payment of the purchase price, and 200, 100, 100, 100, 200, 200, 100, 200, 200, 200, 200, 200, 300,000,000,000,000,000,000,000,000,000

[Ground of recognition] In the absence of dispute, Gap evidence 1-1, 2, Gap evidence 2, Gap evidence 3, Gap evidence 5, Eul evidence 1-1, 2, Eul evidence 3 through 9, Eul evidence 10-1, 2, 11-1, 2, 15-3 of Eul evidence 15-3, each of the whole arguments, the purport of the whole arguments.

2. Determination on the main defense of this case

A. The defendant's assertion

(1) The absence of the authority of the plaintiff representative director to file a lawsuit

According to Article 20(1) of the Administrative Litigation Act, a revocation lawsuit shall be filed within 90 days from the date on which the plaintiff's general meeting of shareholders becomes aware of the disposition, etc., and the disposition of this case is served on the plaintiff on October 5, 2005, and the period of filing the lawsuit of this case is until January 3, 2006. The plaintiff filed the lawsuit of this case on January 2, 2006, but the representative director at the time of the plaintiff's filing of the lawsuit of this case was decided to permit the non-standing act from the Daejeon High Court on January 4, 2006. Thus, the plaintiff did not have the authority to represent the plaintiff on January 2, 2006, which is the time of filing the lawsuit of this case, and the lawsuit of this case is unlawful because it was not brought against the legitimate person within the period of filing the lawsuit of this case.

(2) The absence of interest in a lawsuit

The validity period of CATV broadcasting business against the plaintiff was expired as of March 17, 2006, and even if the disposition of this case is revoked, the lawsuit of this case is unlawful because it is impossible to recover the status of the CATV broadcasting business operator.

B. Determination

(1) Determination as to whether the representative director of the plaintiff has the authority to file a lawsuit

In full view of the overall purport of the arguments as indicated in Gap evidence 4 through 6, the plaintiff's shareholder Kim 00, this 00, Kim ** did not legally respond to the disposition of this case against the defendant after the disposition of this case was taken by Kim Kim Ma, appointed as the representative director of the plaintiff, but rather did the plaintiff's act hindering the plaintiff's normal operation, such as notifying the viewers of this case for 24 hours, and blocking broadcasting signal, and filed an application for provisional disposition of suspending the execution of his duties with the Daejeon District Court Branch (No. 2005Kahap123). Upon the dismissal of the above application, the plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's appeal against the Daejeon High Court (No. 2005Ra122, Dec. 28, 2005) and the plaintiff's plaintiff's plaintiff's plaintiff's representative director's appeal against the provisional disposition of this case was revoked on 10.6.

According to the above facts, since the principal business of the Plaintiff is a CATV broadcasting business and the CATV broadcasting business itself becomes impossible due to the instant disposition, the act of Do00, the representative director of the Plaintiff, filed the instant lawsuit is deemed as the Plaintiff’s ordinary business act.

In addition, since the general meeting of shareholders under the Commercial Act can only adopt a resolution on the matters stipulated in the Commercial Act or the articles of incorporation (Article 361 of the Commercial Act), it shall not be effective as a resolution even if the plaintiff passed a resolution on acceptance of the disposition of this case, other than those stipulated in the Commercial Act or the articles

Therefore, the instant lawsuit was brought by a person who has legitimate authority to file a lawsuit within the period of filing a lawsuit. This part of the Defendant’s assertion is without merit.

(2) Determination as to the existence of an interest in action

Article 13 of the Broadcasting Act provides, “A person who is not the State, a local government, or a corporation shall not operate a broadcasting business or transmission network business. This provision shall also apply to a person for whom three years have not passed since permission, approval, or registration was revoked pursuant to Article 18.” As such, the date of the closing of argument in this case.

Inasmuch as it is apparent that from October 4, 2005, the date of the instant disposition, the disqualified period of three years has not elapsed since October 4, 2005, the date of the instant disposition, there is a legal interest to seek cancellation of the instant disposition against the Plaintiff.

Therefore, the defendant's assertion on this part is without merit.

(3) Sub-decisions

Therefore, the Plaintiff’s lawsuit of this case is lawful.

3. Whether the disposition is legitimate;

A. The plaintiff's assertion

(1) The Defendant’s act of preventing the shareholders of a CATV broadcasting business operator from distributing their shares during the period of business approval is in essence an infringement of the shareholder’s rights and is unfair. Moreover, the transfer of shares on December 10, 200 and December 12, 2002 by six persons, including this**, etc., to a CATV broadcasting business operator, in the relevant area, is ultimately selling shares to a CATV broadcasting business operator, and thus, does not violate the Defendant’s condition of prohibition of shareholder change. Nevertheless, the cancellation condition attached to the above business approval by the Defendant exceeded the limit necessary to achieve the purpose of business approval, and is null and void as it loses equity compared with the business approval by other business operators.

(2) In addition, even if a share transfer was made to Yellow 00, since a share transfer was not made based on it, it cannot be deemed that a project approval was obtained by false or other unlawful means, even if approval was obtained without notifying the Defendant thereof.

Therefore, there is no reason for the instant disposition.

(3) Even if not, if the Defendant is aware of the fact that a share transfer was permitted from August 2, 2004, the instant disposition revoking the approval of the business itself on this ground is unlawful as it deviates from and abused the discretion.

(b) Relevant statutes;

The Broadcasting Act

Article 9 (Recommendation, Approval, Registration, etc. of Permission)

(1) A person who intends to run terrestrial broadcasting business or satellite broadcasting business shall obtain a license for broadcasting stations from the Minister of Information and Communication under the conditions as prescribed by the Radio Waves Act.

(2) A person who intends to operate a CATV broadcasting business or a CATV relay broadcasting business shall obtain permission from the Minister of Information and Communication with facilities and technologies in conformity with the standards prescribed by Presidential Decree.

(3) Notwithstanding the provisions of paragraph (2), where a CATV relay broadcasting business operator satisfying the criteria as determined by the Presidential Decree desires to operate a comprehensive CATV broadcasting business, the Korea Broadcasting Commission shall obtain approval from the Korea Broadcasting Commission.

(4) Any person who has obtained approval under paragraph (3) shall be deemed to have obtained permission from a CATV broadcasting business operator under subparagraph 3 (b) of Article 2 from the time of obtaining approval.

(1) Matters necessary for the procedures and procedures for the recommendation, permission, approval and registration under paragraphs (1) through (10) shall be prescribed by Presidential Decree.

Article 10 (Criteria and Procedure for Review)

(1) When the Korea Broadcasting Commission makes a recommendation under Article 9 (1) and (2), and grants approval under paragraphs (3), (5), (6) and (8) of the same Article, it shall examine the following matters and publicly announce the results thereof:

1. Possibility of realizing the fairness and public interest of broadcasting;

2. Appropriateness of the planning, programming and production plans of broadcast programs;

3. Regional, social and cultural needs and validity;

4. Appropriateness of management plans, including the organization and human resources operation;

5. Financial and technical capability;

16. Support plans for the development of broadcasting;

7. Other matters necessary for conducting the business.

(2) The Korea Broadcasting Commission shall, in making a review under paragraph (1), listen to the viewers’ opinions publicly and publicly announce whether or not to reflect the said opinions.

(3) When the Korea Broadcasting Commission intends to recommend a person who intends to operate a CATV broadcasting business, it shall hear the opinion of the Special Metropolitan City Mayor, Metropolitan City Mayor, or Do Governor (hereinafter referred to as the "Mayor/Do Governor").

Article 12 (Regional Business Privilege)

(1) The Korea Broadcasting Commission may, in case where it makes a recommendation for a license for a CATV broadcasting business or a CATV relay broadcasting business under Article 9 (2), grant the right to operate the business within a specified broadcasting zone (hereinafter referred to as “regional business privilege”). The same shall also apply when granting approval for a CATV broadcasting business under the provisions of Article 9 (3).

(2) The broadcasting zone and the business zone for music cable broadcasting under paragraph (1) shall be publicly announced by the Korea Broadcasting Commission in consultation with the head of the relevant central administrative agency and City/Do branch offices, in consideration of the living zone of local residents, geographical conditions, telecommunications equipment and facilities, etc

Article 13 (Disqualifications)

(1) No person, other than the State, a local government, or a corporation, shall operate a broadcasting business or a signal transmission network business. The same shall also apply to a person for whom three years have not passed since permission, approval, or registration was revoked under Article 18.

Article 18 (Revocation, etc. of Permission, Approval, or Registration)

(1) When a broadcasting business operator, CATV relay broadcasting business operator, CATV music broadcasting business operator, electric sign board broadcasting business operator or signal transmission network business operator falls under any of the following subparagraphs, the Minister of Information and Communication or the Korea Broadcasting Commission may cancel a record of permission, approval, etc., or order the suspension of all or part of the relevant business for a fixed period not exceeding six months: Provided, That the same shall not apply where a person falling under any subparagraph of Article 13 (3) has become the representative of a corporation or a person in charge of broadcast programming and has replaced

1. Where he/she obtains a renewed license or permission for modification, or obtains a renewed license or approval for modification, or files for modification of registration after obtaining such renewed approval, by falsity or other illegal means;

2. Where he owns stocks or quotas in contravention of the provisions of Article 8;

13. Where he/she falls under disqualifications prescribed in Article 13;

4. Where he receives the investment or contribution of property in contravention of the provisions of Article 14;

5. Where he fails to commence the broadcast or business within two years after obtaining a license, approval, or registration under this Act;

6. Where he violates this Act or any order issued under this Act.

(2) The Minister of Information and Communication may, upon a request of the Korea Broadcasting Commission, cancel the permission or registration under paragraph (1), or order a suspension of all or part of the relevant business with fixing the period within 6 months.

(3) Necessary matters concerning the revocation of permission, approval or registration, and the criteria, procedures, etc. for the suspension of business under paragraph (1) shall be prescribed by Presidential Decree.

C. Determination

(1) Determination as to the existence of a cause for action

(A) Determination as to whether the assistant officer is illegal

Article 9(3) of the Broadcasting Act is a new system with the enactment of the Broadcasting Act which combines the legal systems related to the broadcasting distributed by the former Broadcasting Act, the Composite Cable Broadcasting Act, the Cable Broadcasting Management Act, etc. on January 12, 2000. The purpose of the approval of conversion under Article 9(3) is to create a fair competition period between existing CATV broadcasting business operators who enjoy exclusive status in the relevant area by converting relay cable broadcasting business operators into a CATV broadcasting business operator, and to promote the prevention of overlapping investments in the market disturbance and transmission network due to excessive competition between both business operators, and to encourage the consolidation between the existing CATV broadcasting business operators and the existing CATV broadcasting business operators who have been converted into the existing CATV broadcasting business operator, and to make a change in the legal structure or structure of the existing cable broadcasting business operator’s right to cancel its approval, and thus, it cannot be seen that the change in the legal structure or structure of the existing cable broadcasting business operator’s right to cancel its approval cannot be objectively determined as unlawful, even if it did not meet the criteria for the approval of change in its establishment or validity.

In addition, it is necessary to restrict the transfer of shares during the period of approval of the business by preventing the unilateral withdrawal of the constituent shareholders, thereby achieving the purpose of the measure of approval of the comprehensive cable broadcasting business to convert the relay cable broadcasting business operator into the cable broadcasting business operator, and to facilitate the implementation of the business plan at the time of the application for approval. In extenuating circumstances, the Defendant’s prior approval is allowed for the change of shareholders, and even if shares are traded in violation of the above restriction, it is recognized as a private law effect (see, e.g., Supreme Court Decision 2004Da39269, Nov. 11, 2004).

(B) Determination as to whether a project approval is granted by false or other unlawful means

As above, although the shareholder composition is an important review criteria for the approval of the business, it shall be deemed that four shareholders, including the plaintiff's representative director, have sold their shares to Y0, and that the approval of the business by the defendant is limited to the case where the approval of the business has been obtained by false or other unlawful means. Even if the sales contract was revoked after the approval of the domestic business, the grounds for revocation of the approval of the business already occurred cannot be deemed to have expired.

Therefore, the Plaintiff’s assertion that the instant disposition does not exist is without merit.

(2) Determination as to whether or not there is deviation or abuse of discretionary power

*** The purpose of legislation of the transition recognition system, such as fair competition foundation, was seriously damaged by transferring the Plaintiff’s shares to the existing CATV broadcasting business entity, which is the existing CATV broadcasting business entity, before obtaining approval, **, etc. 6, etc., and there is no need to protect the public interest by establishing a legal order. Even if the Defendant permitted the disposal of shares after August 2, 2004, the Defendant still did not permit the change of the largest number of shareholders. In this case, even if the Plaintiff’s constituent shareholders were to change all after the examination, the change was made before the approval was made. Even if the majority of the constituent shareholders agreed to the cancellation of the approval, it is difficult to expect a proper broadcasting business entity even if the approval of the Plaintiff’s business was made under the condition for cancellation, and thus, the Plaintiff could have anticipated that the business approval may be revoked if the Plaintiff’s corporate composition is finally changed. In light of the fact that the Plaintiff’s trust in the business approval was not significant, it is difficult to deem that the Defendant’s disposition of this case was made by abusing discretion.

Therefore, this part of the plaintiff's assertion is without merit.

4. Conclusion

Therefore, the plaintiff's claim seeking revocation is without merit on the premise that the disposition of this case is illegal, and it is dismissed. It is so decided as per Disposition.

Judges

Justices Kim Jong-hwan

Judges Park Chang-soo

Judges Park Sung-sung

Site of separate sheet

Text of revocation of approval

1. The revocation of the approval for a CATV broadcasting business on March 18, 2003 to the plaintiff, but the effective date shall be the date of such revocation.

d February 1, 2006

2. The plaintiff shall enter into a contract for the receipt of composite cable broadcasting with the new applicant from the date of disposition to January 31, 2006.

All related to the recruitment of subscribers, such as solicitation of viewers, solicitation of viewers, solicitation of viewers' subscription advertising, etc.

shall not commit any act under subsection (1) of this section.

3. The Plaintiff’s disposal date on the special rules on the protection of the receiver under Article 14 of the Terms and Conditions for Use of Composite Cable Broadcasting

for viewers who do not want to continue viewing a composite cable broadcasting, the payment has already been made.

Installation costs and advance payment fees shall be refunded, and the comprehensive cable bank of another cable broadcasting business operator shall be refunded;

To the maximum extent possible for viewing other composite cable broadcasting for persons who wish to view transmission;

Article 14(1).

4. The Plaintiff’s revocation of approval for CATV broadcasting business and disposition of suspension of business from the date of disposition until January 31, 2006

In fact, the method of terminating a contract for CATV broadcasting business, and other CATV broadcasting or satellite broadcasting

Guidance on the method of viewing shall be given at least once between 7:00 p.m. and 20:0 p.m. between 9:00 p.m.

shall be broadcast not less than once between the parties. The end shall be

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