(영문) 서울고등법원 2011.9.9. 선고 2011누1773 판결

The judgment of the first instance shall be revoked. The defendant's rejection disposition against the plaintiff on November 23, 2009 against "application for revocation of new technology certification with respect to C" shall be revoked.

Reasons

1. Details of the disposition;

The reasoning for this part of this Court is as stated in the reasoning of the judgment of the court of first instance, and thus, this part is cited in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Ex officio determination

With respect to an administrative disposition for which the period of filing a lawsuit has already lapsed, there is no right to request a change in the individual law or to seek a change in the administrative disposition except in extenuating circumstances such as where the right to request a change can be recognized in the interpretation of the relevant law (see, e.g., Supreme Court Decisions 2005Du1104, Apr. 26, 2007). Furthermore, in cases where the disposition authority has become unnecessary to maintain the original disposition after the disposition or where the need for public interest arises, it may be withdrawn or changed by a separate administrative act without any separate legal basis; however, it is only to grant the disposition authority for such withdrawal or change, not to grant the other party to the disposition or interested party the right to request a withdrawal or change thereof (see, e.g., Supreme Court Decisions 96Du6219, Sept. 12, 199; 2004Du701, Jun. 30, 2006).

As seen earlier, the Defendant publicly announced the new technology certification of this case on the D date, and the Plaintiff asserted that the new technology of this case was already commercialized on July 13, 2009 and November 10, 2009, and that the E Association Chairperson sent the Plaintiff a reply that there was no ground for revocation in the new technology certification publication of this case on November 23, 2009. According to the above facts of recognition, the Plaintiff was aware of the fact that the new technology of this case was published at least on July 13, 2009. The Plaintiff did not file an appeal seeking revocation within 90 days, and the new technology certification publication of this case did not have any dispute over the expiration of the filing period.

Furthermore, the Technology Development Promotion Act does not have a provision that a third party may file an application for cancellation of the above public notice after the public notice of new technology certification was made, and there is only a provision that the defendant may ex officio revoke it (Article 14 of the Technology Development Promotion Act). As such, just because the defendant can revoke it ex officio, it cannot be deemed that the right to file an application for cancellation is granted to a third party, who is a disposition agency, and such purport shall not be deemed to be a mere fact that the right to file an objection is granted to the defendant, who is a disposition agency, to the purport that the third party is more likely to urge the ex officio request (Article 27(4) of the Enforcement Decree of the Technology Development Promotion Act is limited to the right of objection by the interested party in the procedure for authentication of new technology prior to the public notice, and when the ex officio revocation is made after the public notice, the notification duty

In addition, the Plaintiff asserted that the new technology certification notice of this case was infringed on the rights or interests. However, the Technology Development Promotion Act aims to contribute to the development of the national economy by facilitating the development of new technology and disseminating the results thereof (Article 1 of the Technology Development Promotion Act) and strengthening the international competitiveness of the company (Article 1 of the Technology Development Promotion Act). In light of the fact that the new technology certification under the Technology Development Promotion Act seems to be different from the case of patents, etc. that are acknowledged as a patent by strong legal protection

Therefore, as long as the right to file an application for the revocation of the new technology certification notice of this case, which caused disputes, cannot be deemed to have been acknowledged to the plaintiff, the refusal does not affect the plaintiff's rights or legal interests, even if the defendant rejected the application of this case. Therefore, the rejection disposition of this case cannot be an administrative disposition that is the object of appeal litigation.

3. Conclusion

Therefore, the plaintiff's lawsuit of this case is unlawful and thus it shall be dismissed, and the judgment of the court of first instance is unfair, and it is so revoked and it is so decided as per Disposition.