(영문) 서울행정법원 2019.2.22. 선고 2018구합61888 판결

1. The Defendant’s recommendation for postponement of the three-year starting point in Seoul Geumcheon-si to the Plaintiff on March 28, 2018 shall be revoked.

2. The supplementary part of the costs of lawsuit is borne by the Intervenor, and the remainder is borne by the Defendant.

Purport of claim

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. Status of the parties

The plaintiff is engaged in sales business of interior goods, construction materials, tools, etc. as a large enterprise under Article 2 subparagraph 2 of the Act on the Promotion of Collaborative Cooperation between Large Enterprises and Small-Medium Enterprises (hereinafter referred to as the "Mutual Cooperation Act").

The Intervenor joining the Intervenor (hereinafter referred to as the “ Intervenor”) is a small and medium enterprise owner's organization under Article 2 subparagraph 7 of the Collaborative Cooperation Act. approximately 179 persons are members of the Intervenor's organization, E commercial goods sales complex located in Geumcheon-gu Seoul Metropolitan Government D.

B. Opening point of the instant store

1) From around 2013, F Co., Ltd. (hereinafter referred to as “F”), the representative company of the large group of companies to which the Plaintiff belongs, promoted the Home Mumbu (Home Imve Management2) project. As a part of the project, around March 2018, it was difficult for Geumcheon-gu Seoul Metropolitan Government Geumcheon-gu to open a plan to open a major retail store selling interior products, building materials, tools, etc. in G.

2) On January 16, 2018, F entered into a contract with H companies and companies (hereinafter “U.S. J”) and Korea (“J”) under which the right to engage in the business of selling interior goods, construction materials, tools, etc. (hereinafter “instant business”) is granted the right to engage in the business of selling interior goods, construction materials, tools, etc. (hereinafter “instant business”) and to pay the annual royalty of USD 50,000 in return therefor.

3) Pursuant to the above contract, F set the name of a serious retail store that will be opened to G in Geumcheon-gu Seoul Metropolitan Government as a “C Geumcheon-gu Seoul (hereinafter referred to as the “instant store”).

4) On February 28, 2018, the Plaintiff comprehensively acquired rights, obligations, assets, etc. relating to the instant business, including F and the instant store, and entered into a contract for business takeover with the purport that the net assets (i.e., net assets (i., assets) transfer price of KRW 1,464,536,190, and the amount of adjustment calculated by reflecting the situation of subsequent asset fluctuations. The Plaintiff paid KRW 3,200,000,000 in aggregate to F with net asset transfer price and adjustment payment.

5) Around March 2018, the opening of the instant store was completed. The opening of the instant store was smaller than 1,795 square meters.

C. Application for business coordination by the Intervenor and the recommendation for postponement of the opening of the store in this case

1) On November 28, 2017, based on Article 32(1) of the Collaborative Cooperation and Cooperation Act, the Intervenor filed an application for business coordination with the Defendant via the Small and Medium Enterprise Federation, claiming that the sales of E-S-S-S-S-S-S-S-S-S-S-S-S-S-S

2) On December 6, 2017, the Korea Federation of Small and Medium Business presented an opinion that if the store in this case is opened to the Defendant, the E-Ga occupants will suffer significant damage.

3) From December 27, 2017 to February 9, 2018, F and the Intervenor conducted self-resolution consultation on a total of six occasions. The objective of the opening point of the instant store was to create a new market, not the infringement of the structural rights of occupants in E commercial areas. The expected sales of the instant store are about KRW 500 million average monthly sales for 2 to 3 years after opening points, and KRW 700 million average monthly sales for the instant store, while explaining that the display space was reduced and the handling price offered by the Intervenor was not treated as KRW 91 out of the brand 231. However, the Intervenor failed to comply with the instant proposal by asserting the withdrawal of the opening point of the instant store, and eventually, the self-resolution consultation was concluded.

4) The Defendant: (a) requested the Small and Medium Enterprise Research Institute to investigate whether the instant store will be opened; (b) the Small and Medium Enterprise Research Institute conducted an investigation from February 9, 2018 to February 20 of the same month; and (c) from March 14, 2018 to March 20 of the same month; and (d) the Defendant, if the instant store is opened, was reduced to approximately KRW 67.85 billion from around 7.6 billion from around 7.6 billion to around KRW 7.6 billion from around KRW 7.6 billion to around KRW 8.75 billion from the average monthly sales of the E company occupants (i.e., KRW 76.6 billion - KRW 8.75 billion from the damaged amount).

5) On March 28, 2018, the Small and Medium Enterprise Business Coordination Council, held on March 28, 2018, decided that it is necessary to postpone three years of the opening point of the instant store. The Defendant, reflecting the above resolution, notified the Plaintiff on the same day that it recommended the postponement of three years of the opening point of the instant store pursuant to Article 33(1) of the Collaborative Cooperation Act (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 1 through 10, 12 through 14, 34, Eul evidence 1, 2, 10, Eul evidence 1 through 3 (including branch numbers), and the purport of the whole pleadings

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

A. Summary of the defense prior to the merits

Where an act by an administrative agency does not cause a direct change in the legal status of the other party, such act does not constitute a disposition that is subject to appeal litigation. The instant disposition only has a recommendation effect, but does not cause a direct change in the legal status of the plaintiff, and thus does not constitute a disposition that is subject to appeal litigation.

B. Relevant legal principles

The issue of whether a certain act of an administrative agency can be a subject of an appeal cannot be determined abstractly, and in a specific case, an administrative disposition is an enforcement of law with regard to a specific fact conducted by an administrative agency as a public authority, which directly affects the rights and obligations of the people, based on the content and purport of the relevant Act and subordinate statutes, the subject, form, and procedure of the act, the substantial relation between the act and the disadvantage suffered by interested parties, such as the other party, and the principle of administration by the rule of law and the attitude of the administrative agency and interested parties related to the pertinent act, etc. (see, e.g., Supreme Court en banc Decision 2008Du167, Nov. 18, 201

C. Determination

Article 33(3) of the Collaborative Cooperation Act provides that "the defendant may publish the subject matters, contents, etc. of the recommendation when the large enterprise which received the recommendation for postponement of the opening under paragraph (1) fails to comply with the recommendation," and the main sentence of paragraph (4) provides that "the defendant may order the large enterprise to comply with the recommendation if the large enterprise fails to comply with the recommendation without any justifiable reason after the publication under paragraph (3)." Article 41(2) provides that "any person who fails to comply with the order under Article 33(4) shall be punished by imprisonment with labor for not more than two years or by a fine not exceeding 150 million won." As such, if the large enterprise fails to comply with the recommendation even though the defendant received the recommendation for postponement of the opening under Article 33(1) of the Collaborative Cooperation Act from the defendant, the large enterprise is placed in an unstable position to be subject to publication, implementation, and criminal punishment. Therefore, the defendant's recommendation at the stage of postponement of the opening of the recommendation so as to avoid any legal uncertainty in an early appeal litigation by opening of the Act.

3. Whether the instant disposition is lawful

A. The parties' assertion

1) The plaintiff's assertion

The instant disposition shall be revoked on the grounds as follows.

A) Regarding the grounds for the disposition

Article 33 (1) of the Collaborative Cooperation Act provides that "The measures to recommend the postponement of the opening shall be met (hereinafter referred to as the "opportunistic requirement") that a large number of small and medium enterprises may significantly affect or threaten to adversely affect the management stability of small and medium enterprises by reducing their demand for goods or services supplied by them."

However, even if the store of this case is opened, there is no possibility that E-markets significantly adversely affect or threaten to affect the management stability of small and medium enterprises.

B) Regarding deviation from and abuse of discretionary power

Even if it is assumed that an apparent requirement of gender has been satisfied, it is against the principle of proportionality that the Defendant, even though there exists a less influence alternative means, did not consider this, and instead took extreme measures that prohibit business operations for three years. In addition, the Defendant merely imposed restrictions on business methods on other large enterprises in similar cases, and did not take measures that prohibit business operations themselves for a long time as in the instant case, and thus, the instant disposition also violates the principle of equality. Accordingly, the instant disposition was abused and abused discretionary power.

2) The assertion by the Defendant and the Intervenor

A) Regarding the grounds for the disposition

The apparent requirement is only the requirement for application for business coordination under Article 32(1) of the Collaborative Cooperation Act, but does not meet the requirements for the disposition of recommendation for postponement of the opening under Article 33(1). Only the "necessary to secure the opportunity for business activities of the relevant industry-based small and medium enterprises" under Article 33(1) is the requirement for the recommendation for postponement of the opening under

Even if the apparent requirements are the requirements of the disposition of recommending the postponement of the opening of Article 33(1).

Even at home, in light of the findings of the Korea Federation of Small and Medium Business and the research institute of Small and Medium Business, if the instant store is opened, it is anticipated that the E-Ga salesroom occupants with an average of approximately KRW 76.6 billion per month will suffer a loss of KRW 8.75 billion per month, and thus, it should be deemed that a significant requirement has been satisfied.

B) Regarding deviation from and abuse of discretionary power

In order to prevent enormous damages to E-Ga store occupants due to the opening of the instant store, the recommendation for postponement of the three-year opening point was inevitable. Since the total assets of F, a representative company of the large enterprise group to which the Plaintiff belongs, exceed 5.340 billion won, it cannot be deemed that the Plaintiff’s management difficulty arises even if the opening point of the instant store is postponed for three years, and even if the opening point of the instant store is postponed for three years, it cannot be readily concluded that the contract with J company of the United States of America is terminated even if the said contract was terminated, it cannot be deemed that the Plaintiff would incur particular damages. Furthermore, even if the Plaintiff incurred damages due to the postponement of the opening of the instant store, it is erroneous for the Plaintiff to have failed to sufficiently examine the possibility of the postponement of opening the store pursuant to the Collaborative Cooperation Act, and thus, the damages are different from similar cases and factual relations, so the Defendant’s disposition of this case cannot be applied as it is in this case.

B. Relevant legislation

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

C. Whether there exist grounds for disposition

1) Whether the apparent requirements of the recommendation to postpone the opening are the requirements of the disposition

As alleged by the Defendant and the Intervenor, Article 33(1) of the Collaborative Cooperation Act provides that, if the Defendant receives an application for business coordination pursuant to Article 32, if it is deemed necessary to secure the opportunity for business activities of a small and medium enterprise, the Defendant may recommend the relevant large enterprise, etc. to postpone the time of acquisition, commencement, or expansion of its business for a specified period not exceeding three years, subject to deliberation by the Coordination Council, and does not explicitly stipulate that “the time of acquisition, commencement, or expansion of its business may be delayed for a specified period of not more than three years.” However, Article 32(1) of the Collaborative Cooperation Act provides that a small and medium enterprise owner’s organization may reduce the demand for goods or services supplied by a large number of small and medium enterprises in the relevant field of business so that it significantly affects or is likely to affect the management stability of a small and medium enterprise by reducing the demand for goods or services supplied by a large number of small and medium enterprises through the acquisition, commencement, or expansion of its business, it may apply for business coordination to the Defendant through the Korea Federation.

Since the application for business coordination under Article 32(1) of the Collaborative Cooperation Act and the disposition of recommending the postponement of the opening under Article 33(1) is a series of procedures, it cannot be deemed that the requirements for each stage are different. "necessary to secure business opportunities for small and medium enterprises in the relevant type of business" under Article 33(1) of the Collaborative Cooperation Act refers to "necessary to protect small and medium enterprises as it significantly affects or is likely to adversely affect the management stability of small and medium enterprises by reducing the demand for goods or services supplied by a large number of small and medium enterprises." Thus, the two cannot be viewed as a separate requirement. In full view of the fact that the requirement of the recommendation

2) Whether the instant disposition satisfies the apparent requirements at the time of the instant disposition

A) In an appeal seeking the revocation of an administrative disposition, the illegality of the disposition should be determined at the time of the disposition (see, e.g., Supreme Court Decision 2004Du10883, Apr. 15, 2005). Whether the disposition of this case is unlawful should be determined at the time of the disposition. As such, the issue of whether the disposition of this case is unlawful should be determined at the time of disposition

B) The economic order in our Constitution is based on the market economy order that respects free competition based on the private property system. The freedom of occupation includes the freedom of business and the freedom of enterprise, and in principle, anyone can freely participate in competition based on such freedom of business and enterprise.

However, Article 119(2) of the Constitution provides that “The State may regulate and coordinate the economy to prevent any abuse of market power and any abuse of economic power, and to ensure the democratization of the economy through harmony between economic entities,” thereby allowing the State to intervene in the economy within the necessary scope. However, the State’s intervention is recognized within the necessary scope to guarantee economic activities of the people, maintain the market’s normal function, and protect the community. Accordingly, the regulation and coordination of the distribution market should be carried out within the scope consistent with the freedom of business and enterprises guaranteed by the Constitution.

The outlines of the store in this case, such as the store in this case, provide modern consumers with a purchase environment and a new shopping culture, and lower supply unit price through the improvement of distribution process, thereby improving consumption and improving consumer welfare, as well as contributing to the advancement of the distribution industry. In addition, the number of micro enterprises making the major customers visiting the company-type retail store by moving-in in or opening in the vicinity of the store, bringing about the economic revitalization and job creation, such as employing workers, and contributing to enhancing national competitiveness ultimately. Nevertheless, if the opening of a company-type retail store is prohibited indiscreetly for a long time, the phenomenon such as reduction in sales of small and medium enterprises that supply the company-type retail store, reduction in employment, decrease in consumer welfare, etc. may occur.

Therefore, the Defendant, upon receipt of an application for business coordination under Article 32(1) of the Collaborative Cooperation Act, should have closely examined the following: (a) whether the sales of individual goods by small and medium enterprises located near a major retail store are likely to be reduced to a certain extent due to the opening of the major retail store; (c) whether there is no significant change in the sales reduction rate even upon receipt of a mediation plan presented by the founder of the major retail store; (d) whether it is difficult to promote both the founders of the small and medium business, consumers, and small and medium enterprises’ interests through the recommendation for the reduction of production items, quantity, and production facilities; and (e) whether it is difficult to promote both the establishment of the major retail store, consumer, and small and medium enterprises’ interests through the recommendation for the reduction of production facilities. However, as examined below, the Defendant’s determination of the disposition of this case based on the Korea Federation and the Institute of Small and Medium Business cannot be based on objective and reasonable evidence, and thus, the credibility and credibility of the disposition of this case ought to be determined based on the lack of objective and reasonable evidence.

(1) The Korea Federation of Small and Medium Business anticipated that, if the instant store is opened, E-Ga salesroom occupants will suffer considerable damage.

However, the basis for the determination as above is only 63 small and medium enterprises’ statements, which are anticipated to reduce sales if the store of this case is opened. Inasmuch as the E-Ga salesroom occupants are interested in the application for business coordination, their statements cannot be readily concluded to have objectivity, and thus, the Korea Federation of Small and Medium Business did not accept such statements without any verification. However, the Korea Federation of Small and Medium Business, without any particular verification, took the said shop occupants’ statements as the basis for the determination as is, and did not investigate other objective data.

In addition, since the sales goods of the instant stores and E-Ga stores do not fully match, in order to investigate damage to E-Ga stores due to the opening of the instant stores, first of all, the instant stores and E-Ga stores selected the identical items among the sales goods of the instant stores and then individually reviewed whether E-Ga stores will reduce the sales of the individual goods of the instant stores. However, the Korea Federation of Small and Medium Business established an abstract conclusion that, without examining such individual goods, if the instant stores are opened, the E-Ga stores will suffer considerable damage to E-Ga stores.

In full view of the above circumstances, it is reasonable to deem that the outcome of the Korean Federation of Small and Medium Business is not reliable due to its unsound content.

(2) If the store of this case is opened, the Small and Medium Enterprise Research Institute was anticipated to have significant damage to E-based shop occupants by reducing the monthly average sales from approximately KRW 76.6 billion to approximately KRW 67.85 billion (= KRW 76.6 billion - KRW 8.75 billion).

The Small and Medium Business Research Institute set up a conclusion that E is not to be used by E commercial consumers any longer on the ground that E commercial consumers and E commercial consumers are interested in the application for business coordination, and that E commercial consumers have objectivity (see, e.g., evidence Nos. 4 through 6). However, as mentioned earlier, it cannot be readily concluded that E commercial consumers have objective as interested in the application for business coordination. Moreover, the Small and Medium Business Research Institute has logical errors in the conclusion that E commercial consumers would not use E commercial consumers any longer, on the ground that E commercial consumers reply to 'Ne', 'the intention to use the instant store?’ in the event that E commercial consumers open the instant store.

In addition, consumers, who did not have any particular interest in improving their living space by purchasing ordinary interior materials, building materials, tools, etc., or who did not feel the need to visit Geumcheon-gu Seoul for the purchase of interior goods, building materials, tools, etc., can not entirely exclude the possibility of expanding the wholesale and retail market, such as interior goods, building materials, tools, etc. in Geumcheon-gu Seoul as the opening point of the store in this case, with the opening point of the store in this case, while visiting the store in this case or E commercial area in this case, and visiting the store in this case or E commercial area in Seoul. Nevertheless, the small and medium enterprise research institute did not review these aspects in the course of the research, and determined that the sales of the store in this case directly connected E commercial with the damage of the tenant in this case.

Above all, comprehensively taking account of the overall purport of the arguments in the statement Nos. 22 and 23, it can be acknowledged that the monthly average sales of the instant store after the opening point of the instant store was approximately KRW 270 million. Even if the sales of the instant store directly linked to the damage of the E, as alleged by the Defendant and the Intervenor, the damage suffered by Emercing Small and Medium Enterprises due to the opening point of the instant store is merely KRW 270,000,000 per month average monthly average. In light of this, it can be seen that the research findings by the Small and Medium Enterprise Research Institute that the damage suffered by Emercing Small and Medium Enterprises was 875,000,000 won per month average monthly average. 4)

On the other hand, in June 2010, K, a large enterprise, opened and operated "Mincheon Store (hereinafter "MM store"), a major retail store, such as interior area of 13,000 square meters, and construction materials and tools, in the Seo-gu Incheon L, Incheon. 5) The N Center, an industrial complex, is located in the vicinity of the Incheon store. Since the instant store and M store are almost similar to the type of business, even if there are almost some differences in terms of the item dealing with the geographical conditions, it should be considered as the most important investigation to determine the substantial requirements for determining whether the sales of N Center occupants located in the vicinity after the opening of the Incheon store have decreased, even if there were some differences in terms of the item dealing with the goods and geographical conditions, the Plaintiff’s assertion that the M store and the instant store are different from the item dealing with, and that there was a difference in geographical conditions, and the average sales of the 200,000,000,000 won of the Plaintiff’s 70,000,0.

Comprehensively taking account of the above circumstances, it is reasonable to deem that the outcome of the small and medium enterprise research institute’s investigation is not reliable due to its defect

3) Sub-decisions

Ultimately, the instant disposition should be revoked as it is unlawful as there is no ground for disposition.

4. Conclusion

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

Judges

Judgment of the presiding judge;

Judges Slocks

Judges Kang Jae-sung

Note tin

1) In the Framework Act on Small and Medium Enterprises, the term "small and Medium Enterprises" is used in the Framework Act on Small and Medium Enterprises, and the term "small and medium enterprises" is used in the Collaborative Cooperation Act.

2) The term “ Home Twittain” refers to the word “the improvement of living space, including residence,” in total.

3) Even if it is assumed that the requirements of the disposition of recommending the extension of a store are not the requirements of the disposition of recommending the extension of a store, such as the Defendant and the Intervenor’s assertion, making a disposition of recommending the extension of a three-year opening of a store, even though the requirements of the disposition of recommending the extension of a store are not significantly adversely affected or are not likely to affect the management stability of the small and medium enterprises, cannot avoid illegality due to the deviation and abuse of discretionary power due to the violation of the principle of proportionality. Therefore, it is a fundamental basis for determining the legitimacy of the disposition of this case regardless of whether the requirements of substantial nature are the requirements of the disposition of recommending

4) Considering that there has not been a long time after the opening of the instant store, the monthly average sales of the instant store do not seem to have been KRW 8.75 billion on an average of KRW 8.75 billion, as the monthly average sales of the instant store were more than the present, in the future.

5) The Plaintiff stated that the store size of the Incheon store was 9,900 meters (see, e.g., 14 pages of the briefs dated 10, 8, 2018), but specified the store size of the Incheon store as 13,000 meters as stated in the evidence 2-1, No. 25 of the evidence No. 25.