In cases where an administrative agency accepts a report of succession to the status of a business operator under the former Food Sanitation Act, whether the previous business operator constitutes "party" under Article 2 subparagraph 4 of the Administrative Procedures Act (affirmative), and whether the previous business operator should implement the administrative procedure under the Administrative Procedures Act (affirmative)

According to Articles 21(1), 22(3) and 2 subparag. 4 of the Administrative Procedures Act, when an administrative agency imposes obligations on the parties or imposes restrictions on their rights and interests, the administrative agency shall give prior notice of the dispositions to the parties concerned and give them an opportunity to present their opinions. Here, the parties concerned refer to the person who directly becomes the parties to the dispositions of the administrative agency. Meanwhile, according to Article 25(2) and 25(3) of the former Food Sanitation Act (amended by Act No. 6627 of Jan. 26, 2002), if a person who succeeds to the status of the business by acquiring the whole business facilities according to the procedures for sale of seized property under the Local Tax Act reports it to the relevant administrative agency and accepts it, the permission for the business of the former business operator shall lose its validity. In full view of the above provisions, the administrative agency's acceptance of the report on succession to status of the business operator under the former Food Sanitation Act shall be a disposition restricting the rights and interests of the former business operator. Therefore, it is reasonable to deem the former administrative agency directly counter to the administrative procedure.

Article 25(2) and (3) of the former Food Sanitation Act (Amended by Act No. 6627, Jan. 26, 2002); Article 2 Subparag. 4, 21(1), and 22(3) of the Administrative Procedures Act

Plaintiff (Attorney Shin Sung-sung, Counsel for the plaintiff-appellant)

The head of Dong-gu Daejeon Metropolitan City (Attorney above-at-Law)

Intervenor joining the Defendant

Daejeon High Court Decision 2000Nu2134 delivered on July 27, 2001

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

The grounds of appeal are examined.

1. On November 11, 1998, the court below acknowledged that the intervenor's intervenor (hereinafter "the intervenor") received a successful bid for the third floor of 1,160.2 square meters (hereinafter "the part of the building in this case") among the third floor underground floors located in the Dong-gu, Daejeon ( Address omitted) under the Local Tax Act on November 11, 1998, and completed the registration of ownership transfer under the name of the intervenor on November 27, 1998, and reported the succession of the status of the above entertainment drinking house business operator to the defendant on May 12, 199, and determined that the defendant's disposition of this case was unlawful since it was based on the premise that the intervenor's acquisition of the whole business facility in this case's form or part of the facility in this case's facility was not necessary for the plaintiff's acquisition of the whole business facility.

Examining the reasoning of the judgment of the court below in light of the relevant legal provisions and records, the judgment of the court below is somewhat insufficient, but it is just and acceptable, and there is no error of law such as misunderstanding of facts or misunderstanding of legal principles as otherwise alleged in the ground of appeal.

In addition, the argument in the grounds of appeal that the disposition of this case is unlawful is against the principle of equality, and it cannot be a legitimate ground of appeal against the judgment of the court below, as it is a new argument that the plaintiff was made only when it reaches the court of final appeal, and it cannot be a violation of the principle of equity

2. According to Articles 21(1), 22(3) and 2 subparag. 4 of the Administrative Procedures Act, when an administrative agency imposes obligations on the parties or imposes restrictions on their rights and interests, the administrative agency shall give prior notice of dispositions to the parties concerned and give them an opportunity to present their opinions. The parties concerned here refer to the person who directly becomes the parties to the disposition of the administrative agency. Meanwhile, according to Articles 25(2) and 25(3) of the Food Sanitation Act, if a person who succeeds to the status of the business by acquiring the whole of the business facilities according to the procedures for sale of seized property under the Local Tax Act reports it to the relevant administrative agency and accepts it, the permission for business of the former business operator shall lose its validity. Considering the above provisions, the administrative agency's acceptance of the report on succession to the status of the business operator under the Food Sanitation Act shall restrict the rights and interests of the former business operator. Accordingly, it is reasonable to deem that the former business operator directly becomes the party

Therefore, in the case of this case, the defendant had conducted an administrative procedure under the above provision against the plaintiff who is a party under the above provision of the Administrative Procedure Act in making the disposition of this case.

Nevertheless, the court below held that the defendant's disposition of this case is not a party under the above provision of the Administrative Procedures Act and therefore the defendant's disposition of this case cannot be deemed to be illegal because it did not implement administrative procedures under the above provision of the Administrative Procedures Act, and there is an error of law by misunderstanding the legal principles as to the party under the above Food Sanitation Act's business status succession report acceptance or the parties under the Administrative Procedures Act's provision, which affected the conclusion of the judgment (On the other hand, it is not sufficient to recognize that the statement of No. 4-1 to No. 3 and No. 8-1 to No. 8-11, which the court below cited in the judgment below, goes through the above administrative procedure

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Cho-Un (Presiding Justice)