[1] Whether a transferor who asserts that the transfer of business is null and void has legal interest in seeking confirmation of invalidity of the disposition of acceptance of the succession to the status of the permission-granting agency due to the transfer of business without seeking invalidation of the transfer of business (affirmative)

[2] In a case where a lawsuit seeking the revocation of an identical administrative disposition was filed and thereafter a lawsuit seeking the revocation of such disposition was additionally joined, whether a lawsuit seeking the revocation of an additional consolidation can be deemed a legitimate lawsuit if the lawsuit seeking the revocation of an additional claim was filed within the legitimate filing period (affirmative)

[1] The acceptance of a report on succession to the status of a permitting agency due to the transfer and acquisition of a business is based on the premise that there is a legitimate transfer and acquisition of a business, so if there is no transfer and acquisition of a business subject to the acceptance, or if there is no transfer and acquisition of a business, such acceptance shall be null and void as a matter of course as it is not valid, and the transferor who claims the transfer of a business as null and void shall be null and void as a matter of course without seeking invalidation of the transfer and acquisition by civil litigation against

[2] In light of the fact that whether a defective administrative disposition should be deemed null and void or a simple revocation disposition is merely the issue of legal evaluation based on the same factual basis, and that a lawsuit seeking nullification of an administrative disposition should be deemed to include the purport of seeking such revocation, unless there are special circumstances, barring special circumstances, in a case where a lawsuit seeking nullification of the same administrative disposition was filed and a lawsuit seeking revocation of such disposition was additionally joined, it is reasonable to view that a lawsuit seeking revocation of the disposition was legally filed, if the lawsuit seeking nullification of the main claimant was filed within the legitimate filing period of the lawsuit.

[1] Article 35 of the Administrative Litigation Act / [2] Articles 20, 27, and 35 of the Administrative Litigation Act

[1] Supreme Court Decision 90Nu1649 delivered on October 30, 1990 (Gong1990, 2444) Supreme Court Decision 91Nu1544 delivered on June 8, 1993 (Gong1993Ha, 2026) / [2] Supreme Court Decision 75Nu251 delivered on April 27, 197 (Gong1976, 9133) Supreme Court Decision 86Nu87 delivered on April 28, 1987 (Gong1987, 911) Supreme Court Decision 94Nu477 delivered on December 23, 1994 (Gong195Sang, 688)

Hemsan Co., Ltd. (Law Firm LLC, Attorneys Lee Young-hoon et al., Counsel for defendant-appellant)

Market for the United States

Seoul High Court Decision 200Na1448 delivered on August 1, 200

Seoul High Court Decision 2004Nu2068 delivered on March 16, 2005

The judgment below is reversed and the case is remanded to Seoul High Court.

Since the acceptance of a report on succession to the status of a permitting agency following the business transfer and takeover is based on the premise that there has been a legitimate transfer and takeover of a business, even if the transfer and takeover of the business are nonexistent or invalid, such acceptance shall be null and void naturally as it is not valid. The transferor who claims the transfer of the business as null and void shall be deemed to have a legal interest in seeking confirmation of the transfer and takeover of the report as an administrative litigation against the permitting agency immediately without seeking invalidation of the transfer and takeover of the business through civil litigation (see, e.g., Supreme Court Decisions 90Nu1649, Oct. 30, 199; 91Nu1544, Jun. 8, 1993).

Therefore, the issue of whether the instant disposition is null and void shall be determined by whether the instant transfer/acquisition contract, which is a basic act, is null and void. Therefore, the validity of the instant transfer/acquisition contract should be deliberated and determined first.

Nevertheless, the court below held otherwise that even if the transfer and acquisition contract of this case, which served as the basis for the acceptance of the report on the transfer and acquisition of aggregate extraction business as of May 1, 2003 (hereinafter “instant disposition”) against the Defendant’s assistant intervenor, cannot be viewed as null and void a disposition of this case as it is objectively obvious. It erred in the misapprehension of legal principles as to the relation between the acceptance disposition of the permitting agency and the validity of its basic act, thereby failing to exhaust all necessary deliberations as to the judicial validity of the transfer and acquisition contract of this case. The ground of appeal pointing this out is with merit, and it is merely a matter of legal assessment based on the same factual basis (and it is reasonable to view that a lawsuit seeking nullification of an administrative disposition as to this case’s conjunctive disposition as to this case’s conjunctive disposition is not legitimate within the period for revocation of the lawsuit (see Supreme Court Decision 86Nu87, Apr. 28, 1987; Supreme Court Decision 2007Nu14797, Apr. 17, 1987).

Therefore, the judgment of the court below is reversed (the part on the acceptance of a report on the change in the name of the permission holder for quarrying on May 6, 2003) and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-dam (Presiding Justice)