2017Guhap101927. Invalidity, etc. of disposition of refusal to designate an elevator inspection agency

Korea Elevator Research Institute, a foundation

Minister of Public Administration

September 28, 2017

November 23, 2017

1. The plaintiff's main claim is dismissed.

2. The Defendant’s rejection disposition of designating an elevator inspection agency against the Plaintiff on July 14, 2016 is revoked.

3. The costs of lawsuit shall be borne by the defendant.

1. In the first place, the Defendant’s refusal disposition to designate an elevator inspection agency against the Plaintiff on July 14, 2016 is invalid.

2. Preliminary, paragraph (2) of this Article shall apply;

1. Details of the disposition;

A. On December 25, 2012, the Plaintiff filed an application for designation as an elevator inspection agency (hereinafter “application 1”) with the Defendant on December 25, 2012, but the Defendant, on February 8, 2013, was called the former Elevator Safety Management Act (amended by Act No. 11343, Feb. 22, 2012; hereinafter “former Elevator Safety Management Act”), and the Plaintiff filed an appeal against the Central Administrative Appeals Commission under Article 15(2)1 (c) of the former Elevator Facilities Safety Management Act (amended by Act No. 11343, Feb. 22, 2012; hereinafter “the former Elevator Facilities Safety Management Act, which was enforced on February 23, 2013,” and the “inspection” under Article 13(1)1 (c) means a final inspection, occasional inspection, and close safety inspection under Article 13-2 of the former Elevator Facilities Safety Management Act, and the Plaintiff did not seek the revocation of the instant rejection disposition against the Defendant 131.

The term "inspection" under Article 15 (2) 1 (c) of the former Elevator Act means a completion inspection, regular inspection, occasional inspection, and a close safety inspection under Article 13-2 of the former Elevator Act pursuant to Article 13 (1) of the former Elevator Act, so a disposition based on such premise is unlawful.

B. After the above cited ruling, the Defendant returned the first new name of this case on the ground that the Plaintiff did not meet the requirements for designation under Article 15(2)6 of the Elevator Act (it shall be a corporation that has at least four offices in the Special Metropolitan City, Metropolitan Cities, Special Self-Governing City, Do, or Special Self-Governing Province) as amended.

C. On January 6, 2014, the Plaintiff filed an application with the Defendant for designation as an elevator inspection agency (hereinafter referred to as “application 2”), and the Defendant, on June 27, 2014, issued an administrative appeal against the Defendant seeking revocation of the instant refusal disposition against the Defendant on August 14, 2014, on the ground that the Plaintiff is considered appropriate to maintain the current system (two agencies). However, the Plaintiff filed an administrative appeal against the Defendant seeking revocation of the instant refusal disposition against the Central Administrative Appeals Commission (hereinafter referred to as “instant refusal disposition”).

On February 13, 2015, the Central Administrative Appeals Commission accepted the plaintiff's appeal on the following grounds.

(hereinafter referred to as "the quoted ruling of this case").

Since the defendant recognizes that the plaintiff satisfies the formal requirements as an inspection agency, there should be other special circumstances, such as the necessity of important public interest to justify the plaintiff's refusal of the plaintiff's application, and it is difficult to regard that the maintenance of the current (two agencies) system is reasonable at the present time as the special circumstances that justify the refusal of designation.

D. On April 28, 2015, the Defendant examined the Plaintiff’s application of Article 2. On September 16, 2015, 2015, it was difficult to verify the facts, such as normalization of qualification, inspection personnel and equipment, etc., and requested supplementation of evidential data, and notified that it is necessary to conduct on-site inspections if supplementation is made in the future. On August 11, 2015, the Plaintiff completed the follow-up examination of the Korea Authorized Agency (KSAS) Authorized Inspection Agency, and requested on-site inspections. However, the Defendant requested the Plaintiff to obtain the recognition of an authorized inspection agency as well as the main office, and the Plaintiff also requested the Defendant to undergo further designation and on-site inspections. However, on-site inspections, the Defendant did not meet the necessary requirements for an on-site inspection agency as soon as possible, and the Plaintiff did not request the Defendant to undergo an on-site inspection of the Ministry of Government Legislation on 16th of September 20, 2015.

E. On July 14, 2016, the Defendant rendered a disposition of refusal to designate an elevator inspection agency (hereinafter referred to as “instant refusal disposition”) on the grounds that it is inappropriate for the prosecutor’s personnel (including false membership, lack of qualifications, double employment), part of the inspection equipment, and the failure to confirm the part of the inspection equipment.

[Ground of recognition] Facts without dispute, entry of Gap evidence 2 through 19, purport of the whole pleadings

2. The plaintiff's assertion

(a) The primary claim

Since the defendant applied the former Elevator Act retroactively at the time of application of the first and second cases, the rejection disposition of this case is null and void.

(b) Preliminary claim

1) The instant refusal disposition should be revoked in an unlawful manner, as the Defendant has delayed the treatment of civil petitions beyond the period prescribed in the Civil Petitions Treatment Act and the Enforcement Decree of the same Act.

2) The Plaintiff satisfies all the criteria for the designation of an inspection agency, such as inspection personnel and inspection equipment. Therefore, the instant rejection disposition should be revoked in an unlawful manner.

3. Judgment as to the main claim

A. Even in a case where the relevant statute is amended, barring any other provision, an administrative disposition is in principle based on the amended law that enters into force at the time of the disposition and its set criteria. Even in a case where the amended law provides a more unfavorable legal effect than the previous one while applying the existing facts or legal relations, if such facts or legal relations are not already terminated before the enforcement of the amended law, it shall not be deemed a retroactive legislation prohibited under the Constitution. In relation to the application of such amended law, if the people’s trust in the existence of the former statute is recognized to have more protected than the demand of the public interest in the application of the amended law, its application may be restricted to protect the people’s trust (see Supreme Court Decision 2001Du274, Oct. 12, 201).

B. According to the relevant Acts and subordinate statutes, Article 15(2) of the former Elevator Act did not require four or more offices in Special Metropolitan City, Metropolitan Cities, Special Self-Governing City, Do or Special Self-Governing Province (hereinafter “City/Do”). Article 15(2) of the former Elevator Act was added to the above requirements, and the former Enforcement Rule of the Elevator Elevator Safety Control Act (amended by Ordinance of the Ministry of Public Administration and Security No. 347 of February 23, 2013; hereinafter referred to as the “former Enforcement Rule of the Elevator Safety Control Act”) was amended by Ordinance of the Ministry of Public Administration and Security No. 347 of February 23, 2013, the Plaintiff’s assertion that the amended Enforcement Rule of the former Elevator Safety Control Act had no more than seven employees in charge of inspection, and that the amended Enforcement Rule of the former Elevator Safety Control Act has no further been required for the purpose of the above case’s new Enforcement Rule that the Plaintiff’s new Enforcement Rule of the elevator Safety Control Act had no further been in force.

4. Judgment on the conjunctive claim

A. In a case where a ruling revoking a disposition rejecting a party's application is rendered, the administrative agency must take a disposition again for the previous application in accordance with the purport of the ruling. Thus, the administrative agency's disposition not in accordance with the purport of the ruling but in doing another disposition that is incompatible with the disposition is illegal. In this case, the applicant for the ruling has a benefit of demanding the revocation of the unlawful other disposition (see Supreme Court Decision 120, Dec. 13, 198).

B. In the case of this case, since the defendant recognized that the plaintiff satisfies the formal requirements as an inspection agency, there should be special circumstances such as important public interest needs to justify the plaintiff's refusal of the plaintiff's application, and at the present point, the defendant should have made a disposition in accordance with the purport of the quoted ruling in this case. The defendant should have made a decision in accordance with the purport of the quoted ruling in this case. Although there is no express provision that the disposition should be taken without delay in case of a decision that revokes the refusal disposition, it should have been made without delay in accordance with the purport of Article 49 (1) of the former Administrative Appeals Act (amended by Act No. 14832 of Apr. 18, 2017), Article 49 of the former Administrative Appeals Act (amended by Act No. 14832 of Apr. 18, 2017), which provides for the binding force of the general ruling in accordance with Article 49 (1) as well as Article 49 (2), 3, 4, and 5.

C. However, the defendant first requested the plaintiff to normalize the qualification of the authorized inspection agency, to supplement the inspection personnel and equipment, etc., and requested the plaintiff to obtain the recognition of the authorized inspection agency with respect to 3 local offices of 12 persons known to the plaintiff who met this, and thereafter did not make a disposition without delay to request the Ministry of Government Legislation to interpret the provisions of the Ministry of Government Legislation. However, the grounds for delay of the defendant's disposition are as follows: Article 15 (2) of the amended Elevator Act; Article 15-3 of the amended Enforcement Rule of the Elevator Act; and Article 7-3 of the amended Enforcement Rule of the Elevator Act; and it had already satisfied all the above requirements at the time when the defendant made the second rejection disposition of this case. On the premise of the second rejection ruling of this case, the defendant decided that the plaintiff did not need significant public interest interest to issue the rejection disposition. However, it can be seen that the plaintiff satisfied the criteria for the designation of the inspection agency of this case. However, the defendant did not meet the reasonable criteria for the designation of the inspection agency of this case for more than five months.

D. If so, even if there were grounds that the Defendant could not meet the criteria for designation of inspection agency (inspection personnel, inspection facilities, and office) during a period of about one year and five months as above, this constitutes grounds within the binding force of the quoted ruling of this case, which would cause changes in circumstances by unfairly delaying the disposition of this case. If the Defendant did not recognize the binding force of this, the disposition is delayed even after the administrative agency received the quoted ruling.

In light of the fact that there is no intention to evade the binding force of the quoted ruling, it is difficult to view that the Defendant was well aware of the deliberation to review new issues that do not have the binding force of the quoted ruling in this case, the Plaintiff made efforts to satisfy the Defendant’s supplementary requirements several times after receiving the instant quoted ruling, the Plaintiff was unable to employ and maintain the inspector’s personnel finally due to unstable legal relations surrounding the designation of the elevator inspection agency, and the change of circumstances that would have occurred if the Defendant without delay designated the Plaintiff as the elevator inspection agency, would have been considerable in number. Considering that the Plaintiff’s interest and administrative agency’s illegal or unjust disposition, and the need to respect the administrative appeals procedure is more serious than the public interest to obtain the binding force of the quoted ruling in this case.

E. Therefore, the rejection disposition of this case is unlawful against the binding force of the cited ruling of this case and thus should be revoked.

5. Conclusion

The plaintiff's primary claim is dismissed for lack of reasonable grounds, and the conjunctive claim is accepted for lack of reasonable grounds.

The presiding judge and the associate judge;

Judges Lee Jae-hoon

Judges Yang Ho-young

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.