2012Guhap7271 Revocation of the decision to commence business coordination

Emart Co., Ltd.

The Small and Medium Business Administration

Small and Medium Business Association

June 29, 2012

July 20, 2012

1. Of the instant lawsuit, the part of the instant lawsuit seeking revocation of the decision on commencing business coordination regarding the club that the Defendant filed with the Plaintiff on December 21, 2011 shall be dismissed.

2. On December 21, 201, the Defendant’s decision to commence business coordination with respect to Earart written records issued to the Plaintiff on December 21, 201 shall be revoked.

3. Of the costs of lawsuit, the part resulting from the intervention is borne by the Intervenor joining the Defendant, and the remainder is borne by the Defendant.

Order 2 Paragraph 2 and December 21, 2011, the decision to commence business coordination on the establishment that the Plaintiff made to the Plaintiff shall be revoked.

1. Details of the disposition;

A. On May 17, 2010, the Plaintiff opened an online site Emtp:/Rec.com (hereinafter “Emtp”) and started the sales of goods. The Plaintiff remodeled the Embart’s paper store located in Busan-dong, Busan-dong, and opened the Embart’s paper store (hereinafter “instant store”) on August 30, 201.

B. On August 25, 2011, the Intervenor’s Intervenor (hereinafter “ Intervenor”) comprised of wholesalers supplying food materials, etc. filed an application for business coordination with the Defendant via the Korea Federation of Small and Medium Business under Article 32(1) of the Act on the Promotion of Collaborative Cooperation between Large Enterprises and Small-Medium Enterprises (amended by Act No. 11173, Jan. 17, 201; hereinafter “Mutual Cooperation Act”).

C. On August 31, 2011, the Defendant notified the Plaintiff of the Intervenor’s application for business coordination and requested data for business coordination. Afterward, the Defendant submitted various data from the Plaintiff and the Intervenor’s side, which was held by the Small and Medium Enterprise Coordination Council on December 19, 201, and decided and notified the Plaintiff on December 21, 201 that the instant store and the instant club will be subject to business coordination under the Collaborative Cooperation Act and carry out business coordination at the same time.

D. Meanwhile, on February 29, 2012, the Plaintiff transferred his/her club business to Ebrithy Co., Ltd. on Ebrithy, and did not operate his/her club any longer. Accordingly, on May 25, 2012, the Intervenor filed an application for business coordination against Ebrithy’s Ebrithy with the Defendant on the date of Ebrithy’s Ebrithy.

[Ground of recognition] Facts without dispute, Gap evidence 3, Eul evidence 2, 5, and 10, Eul evidence 9, the video and the purport of the whole pleadings

2. Judgment on the Defendant’s defense prior to the merits

A. Defendant’s defense

Since the decision to commence business coordination under the Collaborative Cooperation Act does not affect the Plaintiff’s legal rights and obligations, there is no legal interest to seek revocation of the above decision. Moreover, since the Plaintiff transferred a club business after the Defendant’s decision to commence business coordination, there is no legal interest to seek revocation of the decision to commence business coordination.

(b) Whether a decision to commence business coordination is recognized as disposition;

The issue of whether a certain act of an administrative agency can be the subject of an appeal cannot be determined abstractly and generally. In a specific case, an administrative disposition is an enforcement of law with regard to specific facts conducted by an administrative agency as the subject of public authority, which directly affects the rights and obligations of the people. The decision should be made individually by taking into account the content and purport of the relevant Act and subordinate statutes, the subject, content, form, and procedure of the act, the actual relation between the act and disadvantage suffered by interested parties, such as the other party, and the principle of administration by the rule of law, the attitude of the administrative agency and interested parties related to the pertinent act, etc. (see, e.g., Supreme Court en banc Decision 2008Du167, Oct. 11,

In light of the above legal principles, Article 40 (1) of the Collaborative Cooperation Act provides that "the Administrator of the Small and Medium Business Administration may, upon receipt of an application for business coordination, request the relevant small and medium enterprises or large enterprises, etc. to submit data, or have public officials under his/her control enter their offices, places of business, factories, etc. to investigate account books, documents, facilities, and other things." Article 43 (1) of the same Act provides that "any person who fails to submit data under Article 40, submits false data, or refuses, interferes with, or evades an investigation shall be punished by a fine for negligence not exceeding five million won." If a decision to commence business coordination is made, the other party to the business bears the legal obligation to submit data or to allow public officials belonging to the Small and Medium Business Administration to investigate products, etc., according to the deliberation of the Coordination Council; ② if the other party to the decision to commence business coordination fails to comply with the recommendation, it is reasonable to recommend that the other party to the decision to commence business coordination should have a fundamental dispute over the other party to the decision to commence business.

C. Determination on the defense against the club

Since a revocation lawsuit is a lawsuit seeking to recover the rights and interests infringed or interfered with the disposition by removing the state of illegality caused by an illegal disposition, etc., legal interests that can be recovered to the Plaintiff due to the cancellation of the disposition should exist. In addition, the transfer of the business is the transfer of the whole chain of human and physical property under a contract.

As a result, the legal relationship of the transferor is succeeded to the transferee, but the legal relationship of the public law is succeeded to the transferee only when there are special provisions in the related laws.

In light of the above legal principles, as seen earlier, the Plaintiff transferred the business of the club business to the Defendant on February 29, 2012, as seen earlier, and on May 25, 2012, the Intervenor applied for business coordination again to the Defendant on May 25, 2012. Unless otherwise provided in the related Acts and subordinate statutes that the obligation according to the decision on business coordination is succeeded to the assignee, the Plaintiff cannot be deemed to have lost the respondent’s status and thus, the Plaintiff cannot be deemed to bear the obligation pursuant to the above decision on business coordination. Therefore, there is no legal interest in seeking the cancellation of the above decision on business coordination. Accordingly, there is no legal interest in seeking the cancellation of the above decision on business coordination. Accordingly, the Defendant’s defense on the merits that point out this is with merit, and the part seeking the cancellation of the decision on business coordination against the club that the Defendant made to the Plaintiff on December 21, 2011 is unlawful.

In the lower court, on December 21, 201, the Defendant rendered a decision to commence business coordination with respect to Earart written records to the Plaintiff on December 21, 201, "the instant disposition", and whether it is legitimate or not.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

The store of this case is resumed without an increase in the sales area by improving the existing place of business, and the commencement and expansion of the business does not exist, and it does not constitute a wholesale business which is the same type of business as the small and medium enterprises that have applied for business coordination. Therefore, the instant disposition was unlawful because it does not meet the requirements for the decision to commence business coordination

B. Relevant statutes

Attached Form 1 shall be as listed in attached Table 1.

C. Issues

Article 32 (1) of the Collaborative Cooperation Act provides that "a small and medium business proprietor's organization may file an application for business coordination with the Administrator of the Small and Medium Business Administration when it is deemed that a large number of small and medium business owners' organizations have significantly adverse effects on their business stability by reducing the demand for goods or services supplied by a large number of small and medium enterprises in the relevant business sector due to the acquisition, commencement, or expansion of their business," which provides that ① the acquisition, commencement, or expansion of business shall be the requirements for a decision to commence business coordination, ② the same type of business as small and medium enterprises, ③ the same type of business as small and medium enterprises, and ③ the same type of

(d) Facts of recognition;

1) On May 2006, the Plaintiff: (a) purchased 16 stores from the Maart Korea Co., Ltd.; and (b) opened Maart writing stores, etc.; (c) however, there was home flus Asian dysing points, which are the largest Busan large retailer, in the same commercial area as the Mamaart paper stores, as shown in the attached Form 2; and (d) around April 201, 201, the home flusing point was newly opened at approximately 4500 square meters from the 170m distance from the Maart document store and the Mamaart Busan store was bound by the business progress of the Mamaart document store. The sales trend of the Mate paper stores is as follows.

A person shall be appointed.

2) The Plaintiff improved the store design and lighting facilities, as shown in the attached Form 3 video, and expanded customer convenience facilities, such as a laund maintenance center, laund repair room, etc., installed auxiliary facilities, such as a dog shop, coffee shop, etc., and differentiated and rapidize some items.

3) The store of this case was changed to the unit display method of the tea (PALET) using the method of displaying goods through water works through the alteration of the building structure, such as securing a bus line, compared to the paper store. However, according to the characteristics of goods and consumer purchase customs, the store of this case was allowed to purchase the piece of milk, fry, air conditioners, etc., and was allowed to purchase them on a large unit.

4) The percentage of Egypt written points and the purchase price per customer of the instant store shall be as follows:

A person shall be appointed.

5) From January 201, 201 to May 201, 201, the monthly average sales amounting to KRW 4.23 billion. However, the sales amount on September 201 of the instant store reached KRW 10.27 billion. Moreover, the sales amount per capita customer from January 201 to April 2012 of the instant store was KRW 52,800, and the same period of time was KRW 59,700, Empt Seosan store was KRW 53,700, Emart shipping store was KRW 50,500, KRW 6,000, KRW 50,000. According to the results of the investigation and assessment conducted by the Uniform Certified Public Accountants Corporation (Evidence No. 8), the annual sales amount of the Intervenor’s stores’s sales amount decreased to KRW 40,000, KRW 205,000, KRW 3085,500,000 (Evidence No. 8).

7) On the other hand, unlike the large store-type discount store operated in the form of giving preferential treatment to a business operator, the store of this case did not adopt a membership system for the final consumer or the business operator, and did not issue discount or discount coophones on retail. However, the business registration certificate of the store of this case is written as "do and retail business" in the column of business.

[Ground of recognition] Facts without dispute, entry of Eul Nos. 7 and 8, Gap evidence No. 7, Eul evidence No. 9 and the purport of the whole pleadings

E. Determination

1) Whether the Plaintiff commenced or expanded the business

The plaintiff cannot be viewed as acquiring business because it opened the store of this case by remodelling the existing e-mail written store. Therefore, in this case, it is a question whether the plaintiff can be seen as starting the business or expanding the existing business through the store of this case.

The commencement of the business refers to the commencement of the supply of goods and services for the first time with the place of business, and the expansion of the business means the expansion of the scale of the business by expanding the physical facilities. In this case, the plaintiff could have been seen as having been in need of seeking the improvement of the business environment through remodeling, etc. due to the deterioration of the business environment of the e-mail, and the expansion of the sales area of the store in this case could not be seen as having been in the same way as the e-mail paper store, and the basic sales method of the store in this case continued to maintain the e-mail paper store, and there was no significant change compared with the e-mail paper store, and ④ The increase of sales revenue after the opening of the store in this case is not due to the expansion of the business size, but due to the improvement of the sales facilities and display methods to maintain the existing sales method and the existing sales area, and it is reasonable to deem the opening of the store in this case only to continue its business or maintain its business in writing.

2) Whether the instant store business can be viewed as a wholesale business

Wholesale business is a business selling goods to end-consumers, and retail business is a business selling goods to end-consumers. Whether the store in this case is identical to wholesalers belonging to the Intervenor, shall be determined by comprehensively taking into account the types of stores, kinds of major customers, consumption structure, sales per customer, etc., and the form of business recorded in the business registration certificate is not attributable to the type of business.

However, the following circumstances, which can be acknowledged in accordance with the purport of the entire pleadings, are: (i) the absolute majority of the consumers of the store in this case were composed of general consumers who purchase goods of not more than 300,000 won; (ii) the consumer's ratio of purchasing goods of not less than 300,000 won cannot be deemed to have increased significantly compared with the eft paper store; (iii) the customer's sales per capita of the store in this case cannot be deemed to be higher than the emult store in the previous Busan area; (iv) the 3 sale unit display and large capacity sales are adopted at different prices; and (iii) the product display method is not necessarily appropriate for wholesale business; (iv) if the consumer desires to purchase goods in the form of a piece; (iv) it is reasonable to conclude that the contents of improvement work, such as expansion of convenience facilities for the store in this case, etc. are more important than the improvement of convenience and preference of general consumers; and (v) it is not reasonable to conclude that the Plaintiff's sale business is not subject to general retail business.

3) Sub-decisions

In addition, it cannot be said that the Plaintiff opened or expanded the instant store only by starting or expanding its business. Moreover, it cannot be readily concluded that the business of the instant store is also a wholesale business, such as the Intervenor’s affiliated business operators, and thus, it did not meet the requirements for the decision on commencing business coordination. Therefore, the instant disposition is unlawful without any need to further determine other requirements.

4. Conclusion

Therefore, among the lawsuit in this case, the part of the lawsuit in this case seeking revocation of the decision to commence business coordination against the club that the defendant filed with the plaintiff on December 21, 201 is unlawful and dismissed, and the remaining claims of the plaintiff are accepted for reasons, and it is so decided as per Disposition.

Number of judges of the presiding judge;

Judges Jeong Jae-hee

Judges Yang Jae-chul

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.