In a case where Gap corporation, the purpose of which is to implement welfare programs for supporting persons with disabilities, installed the production facilities that produce "distribution and control devices" and was designated as "production facilities for persons with severe disabilities" by the Minister of Health and Welfare, and where the Minister of Health and Welfare revoked the designation of the production facilities for persons with severe disabilities on the ground that "the above production facilities violated the provisions of direct production under the examination standards (Notice of the Ministry of Health and Welfare) related to the designation of production facilities for persons with severe disabilities, the case holding that the above disposition was unlawful on the ground that Gap corporation's failure to prepare a hearing report even after the completion of the necessary hearing for the above disposition, and failed to conduct the inspection and confirmation procedures for Gap corporation's inspection

The Minister of Health and Welfare issued a disposition to revoke the designation of the production facilities for persons with severe disabilities pursuant to Article 10(1)1 of the former Special Act on the Purchase of Persons with severe disabilities (amended by Act No. 14007, Feb. 3, 2016; hereinafter “former Act on Persons with severe disabilities”) on the ground that “the above production facilities violated the provisions of direct production in accordance with the criteria for the examination related to the designation of the production facilities for persons with severe disabilities” and “the production facilities for persons with severe disabilities” (hereinafter “production facilities for persons with severe disabilities”).

According to Article 22(1)1 of the Administrative Procedures Act and Article 21 subparag. 1 of the former Act on Persons with severe disabilities, the Minister of Health and Welfare must hold a hearing in order to revoke the designation of a production facility for persons with disabilities. According to Article 34(1) and (2) of the Administrative Procedures Act and Article 19(1) of the Enforcement Decree of the Administrative Procedures Act, the presiding official of the hearing must, when holding a hearing, prepare a hearing protocol and allow the parties, etc. to peruse and confirm the contents of the hearing protocol and notify them of the place and period. In light of all circumstances, the presiding official of the hearing did not prepare the hearing protocol even after the commencement of the hearing, and did not proceed with the inspection and confirmation procedure of the hearing protocol for the corporation Gap. Thus, there was a procedural defect in the above hearing, although the Minister of Health and Welfare commenced the necessary hearing procedure for the above disposition, provided the opportunity for the corporation Gap to state his opinion in favor of the corporation Gap, and the presiding official prepared the hearing protocol, and submitted it to the competent administrative agency and did not consider the above procedural defect.

Articles 22(1)1, 34, 35(4), and 35-2 of the Administrative Procedures Act; Article 19(1) of the Enforcement Decree of the Administrative Procedures Act; Article 10(1)1 and Article 21 subparag. 1 of the former Special Act on the Purchase of Products with Persons with Disabilities (Amended by Act No. 14007, Feb. 3, 2016);

Citizens' Participation Welfare Council, an incorporated association

The Minister of Health and Welfare

May 16, 2019

1. The revocation of the designation of the production facility for products manufactured by persons with severe disabilities against the Plaintiff on October 31, 2018 by the Defendant is revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

(a) A party;

1) The Plaintiff, an incorporated association for the purpose of welfare projects for disabled supporting persons, etc., may engage in profit-making business, such as the production of power distribution teams, to the extent that it does not interfere with the intended business. Accordingly, the Plaintiff established a branch office (hereinafter “production facility of this case”) that runs a profit-making business, such as the production of power distribution teams, in the name of “welfare factory with the citizen participation in the incorporated association” in the Dong-gu, Ansan-si.

2) From November 21, 2014 to November 20, 2017, the term of validity of the instant production facilities from the Defendant was designated as “production facilities for products manufactured by persons with disabilities” (hereinafter “production facilities for persons with disabilities”) by using the power distribution team, control device, and lighting fixture. Since then, the Plaintiff was re-designated as the production facilities for persons with disabilities the term of validity of the instant production facilities from the Defendant on November 21, 2017 to November 20, 2020, with the term of validity as to the instant production facilities as “production facilities for persons with disabilities.”

(b) related criminal cases;

1) As of the time of 2015 and 2016, Nonparty 1 supplied guidance facilities, measuring and control equipment, etc. to the government offices, and Nonparty 2 is the representative of “○○○○○○○○○○”. Nonparty 3 is the Plaintiff’s representative, Nonparty 4’s husband, and the execution chairperson of the instant production facilities. Nonparty 5 is the director in charge of the instant production facilities.

2) Nonparty 1, Nonparty 2, and Nonparty 5 were indicted for the following criminal facts as a violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) and were sentenced to each conviction on December 19, 2017 (Seoul District Court Decision 2017Dahap221), and appealed thereon, but they were sentenced to each conviction on July 17, 2018 (Seoul High Court Decision 2018No131). Thus, the said judgment became final and conclusive (hereinafter “criminal judgment”).

The Defendants included in the main text ○○○○○○○ 2 and Nonparty 5 (referring to Nonparty 1, Nonparty 2 and Nonparty 3) and Nonparty 3 conspired with the Plaintiff 10 to purchase the instant water supply system under the name of the victim 10, which was 6, around November 1, 201, under the name of the victim 10, for the purpose of replacing the Central Sewage Treatment System (hereinafter “the instant control system”) 10, which was ordered by Ansan-si 2 and the Plaintiff 10. The Plaintiff was not able to directly produce the instant water supply system under the name of the victim 10, and the Plaintiff 1 and Nonparty 2 conspired to purchase the water supply system under the name of the victim 10, which was 6, to supply the instant water under the name of the victim 10, which was 0, 100, 200, to supply the water under the name of the Plaintiff 1 and Nonparty 3 to the Plaintiff 10, 2015, respectively, by entering into a negotiated contract with the Plaintiff 1 and Nonparty 2.

C. Circumstances of the instant disposition

On October 31, 2018, the Defendant issued a disposition to revoke the designation of the production facilities of this case for persons with severe disabilities pursuant to Article 10(1)1 of the former Special Act on the Purchase of Products with severe disabilities (amended by Act No. 12621, May 20, 2014; hereinafter “former Act on the Purchase of Products with severe disabilities”) on the ground that the instant production facilities violate the criteria for examination related to the designation of production facilities for persons with severe disabilities (Article 2016-16 of the Ministry of Health and Welfare’s notification) (hereinafter “instant disposition”).

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 2, 6, 20, 34, Eul evidence Nos. 1 through 3 and 7 (including branch numbers), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) procedural illegality

Since there is no signature of the presiding official of the hearing in the statement of the hearing and the inspection and confirmation procedures are omitted, the defendant is deemed to have not implemented the procedure of the hearing. Accordingly, the disposition of this case is unlawful.

2) substantial illegality

In the instant disposition, the grounds for disposition do not exist or erred by applying the statutes. Therefore, the instant disposition is unlawful.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Whether there is a defect in the hearing procedure

1) Relevant regulations, etc.

A) According to Article 22(1)1 of the Administrative Procedures Act, where an administrative agency provides that a hearing shall be held in cases where a disposition is rendered by another administrative agency under other statutes, etc. Furthermore, according to Article 21 Subparag. 1 of the former Act on Persons with Disabilities, the Minister of Health and Welfare shall hold a hearing in cases where he/she intends to revoke the designation of production facilities for persons with disabilities.

The purpose of the hearing system under Article 22(1)1 of the Administrative Procedures Act is to consider the possibility of correction of illegal cause and to ensure the appropriateness of disposition by giving the parties an opportunity to submit materials favorable to a vindication for the reason of administrative disposition. Thus, if an administrative agency provides that a hearing should be held, in particular, in the case of an infringing administrative disposition, in the relevant Acts and subordinate statutes, etc., the administrative agency must hold a hearing, unless it falls under exceptional cases that do not require a hearing under the relevant Acts and subordinate statutes, such as the Administrative Procedures Act, etc., and the disposition lacking such procedures constitutes an illegal disposition and thus constitutes a ground for revocation (see Supreme Court Decision 2005Du15700, Nov. 16, 2007).

B) Article 34(1) of the Administrative Procedures Act provides that the presiding official of a hearing shall prepare a hearing protocol containing personal information, such as the presiding official’s position, name, etc. (No. 2), whether the party, etc. was present (No. 3), the summary of the party’s statement, evidence submitted (No. 5) etc.; Article 34(2) provides that the party, etc. may inspect and confirm the content of the hearing protocol; if so, the party, etc. may request correction; and Article 19(1) of the Enforcement Decree of the Administrative Procedures Act provides that the presiding official of the hearing shall prepare the hearing protocol and notify the party, etc. of the place and period for perusal and confirmation of the hearing protocol without delay in order to guarantee the right of perusal, verification and objection.

In addition, Article 35(4) of the Administrative Procedures Act provides that when the presiding official of a hearing completes the hearing, he/she shall submit the records of the hearing to an administrative agency without delay, and Article 35-2 of the Administrative Procedures Act provides that the administrative agency shall sufficiently review the records of the hearing received and reflect the results of the hearing if deemed reasonable.

C) In light of the above legal principles on the contents and structure of the above Acts and subordinate statutes, the Administrative Procedures Act requires the presiding official of the hearing to prepare a protocol of the hearing and allow him/her to peruse and confirm it, and require the administrative agency to take a disposition after reviewing the protocol of the hearing, considering the possibility of correction of the illegal cause by granting the party an opportunity to submit materials favorable to his/her defense and to achieve the prudentness and appropriateness of the disposition. Accordingly, the presiding official of the hearing shall prepare the protocol of the hearing when holding the hearing, and as such, if holding the hearing, a document proving that the presiding official has given the party an opportunity to submit materials favorable to his/her defense, by actually proceeding the hearing and providing the party an opportunity to submit materials favorable to his/her defense, the presiding official of the hearing shall prepare the protocol of the hearing when holding the hearing.

2) Facts of recognition

A) On September 4, 2018, the Defendant requested the Plaintiff to attend the hearing (round September 19, 2018, around 15:40, September 19, 2018, and the presiding official of the hearing: Nonparty 6 professor).

B) On September 7, 2018, the Plaintiff rendered a request for revocation and postponement of the hearing on the grounds that there exists any defect in the application of the Act on the Disposition of this case, and that Nonparty 5 plans a new trial against the criminal judgment, and thus, the Plaintiff would revoke or withhold the hearing. However, on the same day, the Defendant sent to the Plaintiff on the same day, “if the Plaintiff is present on the date of the hearing, and if the attendance was difficult, he/she would have presented justifiable reasons therefor by September 17, 2018, and if he/she was absent in the hearing without submitting justifiable reasons, he/she will proceed with the administrative disposition after the completion of the hearing, referring to the existing written opinion presented.”

C) On September 17, 2018, the Plaintiff submitted to the Defendant a “written reason for non-existence of the hearing” requesting the Defendant to permit the absence of the hearing on the ground that “The case in criminal judgment was occurred three years prior to the date of the trial, and the representative at the time resigned and the relevant persons were dismissed, and the current representative is in need of Non-party 3 and is also trying to resign.”

D) As the Defendant did not respond to the foregoing, the Plaintiff sent to the Defendant documents with the same content as the statement of the reasons for non-compliance in the hearing as described in the foregoing sub-paragraph (c) on September 19, 2018, which was on the day of the hearing.

E) On September 19, 2018, the Plaintiff was not present at the second hearing for the production facilities for products manufactured by persons with severe disabilities in the year 2018 (hereinafter “instant hearing”).

F) Although the presiding official of the hearing of this case concluded the hearing of this case, he did not sign the hearing protocol, and did not notify the Plaintiff of the place and period for perusal and confirmation of the hearing protocol.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 8 through 15, Eul evidence Nos. 3 through 6, 10, 11, 14 (including branch numbers), and the purport of the whole pleadings

3) Determination

A) Examining the above facts in light of the above relevant provisions and legal principles, the Defendant must hold a hearing in order to take the instant disposition against the Plaintiff. Since the presiding official of the hearing did not prepare the hearing protocol even after the commencement of the hearing of this case and did not proceed with the inspection and confirmation procedure of the hearing protocol against the Plaintiff, there is procedural defect in the hearing of this case.

Although the Defendant commenced the necessary hearing procedure for the instant disposition, provided the Plaintiff with an opportunity to state opinions favorable to the Plaintiff, and the Plaintiff voluntarily participated on the date of the hearing, considering the purport of the hearing system under which the presiding official prepared the hearing protocol stating the same contents and submitted it to the competent administrative agency, and the administrative agency should take into account this, the defect in the hearing procedure above is significant.

Therefore, the instant disposition based on the defective hearing is unlawful as it did not comply with legitimate procedures.

B) As to this, the Defendant asserts that there is no procedural defect in the hearing of this case, since the Plaintiff voluntarily waived the opportunity to present opinions and to guarantee the right of defense.

Article 22 (4) of the Administrative Procedure Act provides that when a party clearly expresses his/her intent to waive the opportunity to state his/her opinion, he/she may not state his/her opinion, and Article 14 of the Enforcement Decree of the same Act provides that when the party gives up the opportunity to state his/her opinion, he/she shall submit the waiver of the statement of opinion or other equivalent document to

In addition, prior to the date of the hearing, the Plaintiff requested the cancellation or postponement of the date of the hearing in this case on the grounds that “the application of the Act related to the Disposition in this case has a problem in the application of the Act, and the review of the criminal judgment is scheduled,” and sought permission for the refusal of the hearing in this case on the grounds that the attendance at the hearing in this case is difficult.

In full view of the above-mentioned provisions and the above-mentioned facts, it cannot be deemed that the plaintiff clearly expressed in writing the intent to waive the opportunity to state opinions to the defendant, so this part of the defendant's argument

4) Sub-determination

Ultimately, the disposition of this case is unlawful because there is a defect in its procedure, and it is not necessary to determine the remainder of the plaintiff's substantive defect claims.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is so decided as per Disposition.

[Attachment] Relevant Statutes: omitted

Judges Park Jong-sung (Presiding Judge)

1) The prosecutor applied for Amendments to Bill of Indictment in the appellate court, and the same was changed following the permission by the appellate court. Accordingly, the appellate court reversed the judgment of the court below and rendered a new trial and determination. The appellate court sentenced each conviction on the same criminal facts as the judgment of the court below, and sentenced the remainder as the judgment of the court below in addition to reducing the punishment of Nonparty 1 from three years to two years.