(영문) 서울고등법원 2015.3.19. 선고 2014누51021 판결

A. The Plaintiff, around 2007, established a Etha Capital Co., Ltd. (2) (hereinafter “Athath Capital”) and owned all the shares issued by Athath Capital from around that time to December 2013.

B. However, the Plaintiff, the largest shareholder of the Plaintiff, was converted into a general holding company on January 1, 201 pursuant to Article 8 of the Monopoly Regulation and Fair Trade Act (hereinafter “Fair Trade Act”), and the Plaintiff became a subsidiary of a general holding company, and the Eth Capital became a second-tier company.

C. Accordingly, according to the grace period system under the proviso of Article 8-2(3)3 of the Fair Trade Act, the Plaintiff could lawfully control the Ethical Capital, a second-tier company, until December 31, 2012, for two years from the date on which he/she became a subsidiary of AelN Holdings.

D. After that, on November 21, 2012, on which the grace period for the above two years expires, the Plaintiff applied for an extension of the grace period to the Defendant under Article 8-2 (6) of the Fair Trade Act, but the Defendant did not approve the said application.

E. On December 30, 2013, AELN Holdings ceased to exist in the course of a merger with ABS Co., Ltd., the subsidiary company, and accordingly, went beyond the position of a general holding company against the Plaintiff.

F. On April 24, 2014, the Defendant, as a subsidiary of a general holding company, issued an order to pay penalty surcharges listed in the attached Table (hereinafter “instant disposition”) to the Plaintiff on the ground that the Plaintiff violated Article 8-2(3)3 of the Fair Trade Act by controlling Eth Capital as a second-tier company after the lapse of December 31, 2012, which was the grace period, notwithstanding the fact that the Plaintiff, who is a subsidiary of a general holding company, was unable to control the company engaged in financial business as a second-tier company.

[Ground of recognition] Unsatisfy, entry of Gap evidence 1, purport of whole pleadings

2. Ex officio determination

When an administrative disposition is revoked, such disposition shall lose its validity and no longer exists, and a revocation lawsuit against a non-existent administrative disposition is unlawful as there is no benefit of lawsuit (see, e.g., Supreme Court Decisions 2004Du5317, Sept. 28, 2006; 2009Du16879, Apr. 29, 2010).

However, in the case holding the same issue as the instant case (Seoul High Court Decision 2012Nu9019 Decided August 10, 2012 and Supreme Court Decision 2012Du2007 Decided July 24, 2014), the Defendant lost on the ground that “an act of violation under Article 8-2(3)3 of the Fair Trade Act constitutes a lack of a provision on the upper limit and standard of imposition of a penalty surcharge and there is no provision on the grounds that there is no provision on the grounds of imposition of a penalty surcharge.” In light of the above, the Defendant’s revocation of the instant disposition ex officio and the refund of a penalty surcharge already paid on November 6, 2014 is without dispute between the parties.

Examining the above facts in light of the legal principles as seen earlier, the instant disposition has already become null and void, and the instant lawsuit has become null and void and became null and void due to no longer existent disposition.

3. Conclusion

Therefore, the lawsuit of this case is dismissed, and the burden of litigation costs is applied to Article 32 of the Administrative Litigation Act and it is decided as per Disposition by the defendant.