(영문) 서울행정법원 2017.9.28.선고 2016구합71423 판결

1. The Defendant’s disposition of business suspension against the Plaintiff on May 27, 2016 (from 08:00 to 11:00 each day for six months, and from 20:0 to 23:00 to 23:00 each day) is revoked.

2. The costs of the lawsuit are assessed against the defendant.

3. The validity of the disposition stated in paragraph 1 shall be suspended until the judgment of the appellate court of this case is pronounced.

Purport of claim

It is identical to the text of paragraphs 1 and 2.

Reasons

1. Details of the disposition;

A. The Plaintiff obtained approval from the Korea Communications Commission pursuant to Article 9(5) of the former Broadcasting Act (amended by Act No. 1016, Mar. 22, 2010) for five (5) years from May 28, 2010 to May 27, 2015. (2) On November 27, 2014, the Plaintiff was in violation of its name before the expiration of the term of validity of the said approval to Defendant (the Ministry of Science, ICT and Future Planning, prior to July 26, 2017) (the Ministry of Science, ICT and Future Planning, and the Ministry of Science, ICT and Future Planning, and the Ministry of Science, ICT and Future Planning) for renewed approval under Article 9(5) of the same Act. The Plaintiff was in violation of its duty to renewed approval on the said business plan from May 28, 2010 to May 27, 2015.

D. On May 27, 2016, based on Article 18(1)1 of the Broadcasting Act, Article 17(1) and attached Table 1-2 of the Enforcement Decree of the Broadcasting Act (amended by Presidential Decree No. 27246, Jun. 21, 2016; hereinafter “Enforcement Decree of the Broadcasting Act”), the Defendant issued a disposition of business suspension ordering the Plaintiff to prohibit the Plaintiff from transmitting broadcasting for six hours during a six-time period of time each day, and notified the Plaintiff of the relevant recommendation. The grounds for and details of the instant disposition and related recommendations are as follows.

The applicant for renewal of the reasons for the disposition of this case shall include punishment (including where the litigation is in progress on October 31, 2010) by the former and incumbent executives under the contents of "Application for Re-approval (Public Notice on November 24, 2014; - - 247) for renewal of the Business Plan; - Other related documents and electronic mail, etc. for a certain period of time (including where the litigation is in progress) under criminal acts of the former and incumbent executives according to the contents of "Application for Re-approval for Re-approval" (referring to the examination unit); however, the Plaintiff shall first prepare and submit a program for the violation of trust of the former representative director and the former living division head (G); the Plaintiff shall be included in the program without reflecting such fact; six hours from the date of suspension of business to the date of suspension of business (referring to the period of suspension of business - 1 to 20 months from the date of notification and notification of the total suspension of business operation (referring to the Ministry of Science, ICT and Future Planning)";

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Since future officers in charge of the review of the instant re-approval were fully aware of the Plaintiff’s criminal acts committed by the former and incumbent executives and employees at the time of the review through various data submitted by the Plaintiff several times, the instant re-approval cannot be deemed to have been received by false or other unlawful means only on the ground that the Plaintiff did not enter matters concerning the receipt of partial executives’ property in breach of trust in the business plan submitted to the future register to obtain the instant re-approval, and the criminal acts committed by some executives whose judgment of conviction has not been finalized under the principle of presumption of innocence do not constitute the subject of omission or concealment. Since the matters concerning the receipt of partial executives’ property in breach of trust, which were not entered in the business plan submitted by the Plaintiff to the future register, cannot be deemed to have affected the instant re-approval, the instant disposition was unlawful as the grounds for

2) Even if assumed that the grounds for the instant disposition exist, the instant disposition is unlawful by deviating from and abusing discretionary authority, in light of the following: (a) the Defendant’s re-approval process of the instant disposition; (b) the details of the instant disposition; and (c) the degree of damages that the Plaintiff and small and medium-sized subcontractors, etc. suffered due to the instant disposition; and (b) the instant disposition is considerably more likely to be achieved than

B. Relevant statutes

It is as shown in the attached Form.

1) An administrative officer C belonging to the future department as a working-level officer from September 12, 2013. From March 27, 2015 to March 27, 2015, the secretary D was responsible for the approval and re-approval review of a program provider at a broadcasting program business policy team comprised of inside the future department promoting broadcasting sector. E, the director of the broadcasting promotion policy team, was in charge of the above affairs from August 27, 2014.

2) On June 23, 2014, the Seoul Central District Prosecutors' Office announced the results of the investigation into the supply and embezzlement corruption case to the effect that, through the media around June 23, 2014, the 10 executives and employees, including the former representative director F of the Plaintiff, former representative director G of the product sector, and former employees, including G, have embezzled the Plaintiff's property or received money and valuables in return for illegal solicitation from the trader, and charged F and G, etc. accordingly, the results of the judgment rendered on F and G are as follows.

A) As to the criminal facts such as embezzlement of KRW 302,725,00 of the Plaintiff’s funds by means of appropriating the Plaintiff’s personnel expenses and construction cost as the processing of the Plaintiff’s services, F, upon request from the home shopping mall operator from December 2, 2008 to January 201, 201, he received KRW 70 million in total over 14 times as a result of the request to provide various convenience in relation to the broadcast time period, broadcast frequency, etc., and received KRW 14,00,00,000 from November 21, 2014, F was sentenced to two years of imprisonment with labor for occupational embezzlement and breach of trust (Seoul Central District Court 2014Da7333), and appealed against the above judgment (Seoul Central District Court 2014Da7333).

B) From December 5, 2008 to October 2, 2012, G was sentenced to three years of imprisonment with prison labor on July 11, 2014 (Seoul Central District Court Decision 2014Da426), and appealed against the above judgment (Seoul Central District Court Decision 2014Da5426).

3) On October 7, 2014, upon C’s request, the Plaintiff prepared a document (hereinafter “the first text case of this case”) stating “the summary and result of the delivery of slot Home shopping” (hereinafter “the instant document”) and sent it by e-mail. The content of the said document is as follows.

4) Around November 24, 2014, the future department: (a) formulated and publicly announced a master plan for renewal of a broadcasting program provider (hereinafter “master plan for renewal”); and (b) sent a notice for renewal of a broadcasting program provider (hereinafter “master plan for renewal of a broadcasting program”); and (c) sent a notice for renewal of a broadcasting program provider, including the Plaintiff, for which the term of validity of the approval expires in 2015 (hereinafter “certificate for renewal of a broadcasting program provider”); and (d) the main contents of the master plan for renewal of a broadcasting program provider and the notice are as follows.

A) The instant renewed approval master plan and the notice are examined as to the appropriateness and feasibility of the broadcasting business operation performance during the past approval period and the next renewed approval period’s business plan. However, the requirements for evaluating the public responsibility of broadcasting and the unfair and unreasonable business practices can be strengthened so as to eradicate and prevent the misconduct, etc. causing social controversy.

B) The subject of the re-approval examination of this case consists of nine items as listed in the table below. The subject of the re-approval of this case is as follows. Two items (public responsibility, fairness, and public interest feasibility of broadcasting) out of the two items in the basic plan of this case are adjusted to 150 points to 200 points in the previous basic plan of this case, and five items (e.g., adequacy of management plans, such as organization and human resource management) also adjusted to 60 points to 90 points in the previous 60 points and at the same time, if the subject of the re-approval of this case obtains less than 50% of the points assigned by introducing ex-post items to the above items, and then the subject of the re-approval of this case is decided to refuse the re-approval or make the conditional re-approval after the evaluation of the Examination Committee (On the other hand, the basic plan of this case is revised to be evaluated in 2 items when preparing a subsequent detailed plan, and the subject of the re-approval of this case is prepared to be included in the "business performance results and re-related items" and the 5 items.

5. (3) Appropriateness of management plans, such as organization and human resource management, (3) transparency and management planning; (5) case of violation of Acts and subordinate statutes, such as the Monopoly Regulation and Fair Trade Act (Fair Trade Act), and case of violation of laws and subordinate statutes such as the Fair Trade Act (the date of re-approval); and (5) case of violation of the Act and subordinate statutes such as the Act on Fair Transactions in Large-Scale Distribution Business (the Fair Trade Act); the Plaintiff prepared documents related to renewal of business plans (hereinafter referred to as "first business plan") on November 27, 2014, and submitted them to the future department. In the first business plan, the details related to "five (3) transparency and management transparency of the applicant corporation and its executives and employees included in the five (5) items in the business plan, including the following items (3) - the number of executives and employees subject to criminal punishment due to the violation of the Act and subordinate statutes, and the number of executives and employees subject to criminal punishment (hereinafter referred to as "the number of executives and employees subject to criminal punishment due to embezzlement").

After the criminal punishment details due to the misconduct by the executives and employees of the company applying for the violation of relevant statutes, such as the Fair Trade Act, upon the case of violation of relevant statutes, C requested the Plaintiff to be informed of the progress of the trial by the relevant executives and employees. Accordingly, on February 2, 2015, the Plaintiff re-written the first sentence and sent it by e-mail (the document re-written and sent as above is referred to as “the second sentence of this case”) and the content of the said document are as follows.

7) On the other hand, on January 23, 2015, the future department sent the Plaintiff a re-written guide for approval of a home shopping program providing business (hereinafter referred to as the "written guide for approval of this case") and requested the Plaintiff to submit it by March 6, 2015 after supplementing the first business plan. The certified copy of the above written approval was included in the two examination items (public responsibility, fairness and public interest nature of broadcasting) within the business plan - (1) public responsibility, performance results and action plan - (1) criminal punishment of an executive officer or employee of the program providing business operator against misconduct regardless of the former or incumbent type of "criminal act of an executive officer or employee related to the business operation, such as corruption, etc." in addition to the "related person's position and number of persons related to criminal acts" related to the business operation of the relevant program providing business operator.

2. Possibility of realizing the public responsibility, fairness, and public interest of broadcasting (1) a criminal act of executives and employees, such as corruption related to the performance of public responsibility of broadcasting and the operation of the No.4 project (where such executives and employees are subject to criminal punishment for misconduct, etc.) (i) where a lawsuit is pending, technology such as the progress status and appeal status up to the date * the position and number of persons related to the criminal * 8) On the same day, C sent e-mail detailed examination items, allocated points, and determination criteria for re-approval of the following contents to the program provider subject to re-approval review by reference in relation to the re-approval review of the Plaintiff and others

In accordance with the review results of the review by the review committee of criteria for re-approval 1,001,00 of detailed items for review and allocated points * : (19) The plaintiff re-established a program providing business operation performance and plan (hereinafter referred to as "second program plan") that supplement the first program upon request of the future department, and submitted it to the future department on March 6, 2015, and included "(1) public responsibility, performance and implementation plan for broadcasting - - (4) criminal acts of executives and employees, such as corruption related to the business operation - as described below in the second program plan 2, included "cooperative and Gap as the case of related misconduct and the case of embezzlement of internal funds", and included "the case of embezzlement of internal funds" in "the case of embezzlement of 100,000,000, and included "the case of 20,000 won" in "the case of embezzlement of the first program."

10) On the other hand, C prepared a document on February 2015, 2015, the title "the result of the trial related to the cost of supply of TV home shopping" for 10 executives and employees, including interest rates related to the business operation - cooperation companies and Gap. The above document contains three cases of embezzlement and eight cases of breach of trust by calculating the number of occupational embezzlement and the number of property in breach of trust and the number of property in breach of trust, and 8 cases of breach of trust. After the document, C prepared a document on February 24, 2015 and April 10, 2015, stating that "major issues related to the National Assembly preparation" as the document on April 24, 2015, as well as that on April 24, 2015, the document includes "the result of the trial related to embezzlement and the result of the trial related to embezzlement and the result of the trial related to the plaintiff's 10 executives and employees as the second sentence of this case."

11) After that, on March 23, 2015, in the future departments, a detailed plan for the re-approval of program providers containing detailed review criteria (hereinafter referred to as "detailed plan of re-approval of program providers") was formulated, and on April 23, 2015, a detailed plan for the re-approval of program providers (hereinafter referred to as "Examination Committee") was formulated including administrative matters related to the operating schedule of program provider approval review committee (hereinafter referred to as "Examination Committee"), and the details of the said re-approval plan are as follows.

A) In the detailed plan for renewal of this case, the items for renewal of approval, which were divided into nine categories under the plan for renewal of this case, were classified into 19 categories, and the said 19 categories were again classified into 48 categories.

B) In the detailed approval plan of this case, among the items of re-approval examination, the sub-items 2 (the possibility of realizing the public responsibility, fairness, and public interest of broadcasting) among the items of re-approval examination (2-1. performance results and action plans related to the public responsibility of broadcasting) are included in sub-items 2 (2-1. 2-1. hereinafter referred to as "sub-items 2-1-4. hereinafter referred to as "the sub-items of this case").

C) According to the re-approval plan of this case, the number of marks 30 out of the total marks 200 of the items of sub-items 2 adjusted upward according to the basic plan of this case is set as 30. The above sub-items are set as quantitative assessment items. In the evaluation of the above sub-items, where an officer or employee of a program provider subject to re-approval has been sentenced to a fine or heavier punishment for a crime of breach of trust, etc. (based on the first instance judgment), more than four executives and employees, and two employees, respectively.

12) On April 17, 2015, the future department requested the Plaintiff to verify the reasons why the Plaintiff did not enter F in the second business plan the crime of breach of trust. On April 20, 2015, the Plaintiff respondeded to the second business plan requested by the Ministry as follows. In relation to the request for confirmation as to the omission of entry of the former representative director’s breach of trust in the second business plan, we know that the former representative director was aware that the former representative director was aware of the omission of entry in the crime of breach of trust in the second business plan requested by the Ministry, and in our country, the former representative director was received from the cooperation company’s representative who was aware of the past department office’s work facility. In addition, we cannot confirm the facts related to the act of breach of trust in our country. Accordingly, it is difficult to inform the Plaintiff that there was no additional matters related to the former representative director among the details described in the second business plan

13) On April 2015, the future department constitutes a review committee composed of external personnel for the re-approval review. In the case of seven quantitative assessment items, including the instant sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-paragraphs 48, including the instant sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-s

14) Following the review committee determined detailed review criteria on April 30, 2015, and deliberated on whether to renew the authorization of program providers, including the Plaintiff, including the Plaintiff, obtained 672.12 points out of the full score 1,000 as listed in the following table, and obtained 102.78 points exceeding 50% of the marks (200 points) in sub-items 2, which are subject to the application of each 1,000, and met the conditions for renewal (acquisition of more than 650 points out of the full score 1,000 points and acquisition of more than 50% of marks out of the total of 1,00 points). However, the review committee decided to renew the renewal period from five to three years, taking into account the sanctions taken by the Fair Trade Commission against corruption and unfair trade practices by its executives and employees, and thereafter, the Plaintiff became subject to the renewal of the instant case from the Minister of Justice on May 26, 2015.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 12, 20, 21, 28, 29, Eul evidence Nos. 4 and 12, the purport of the whole pleadings

D. Determination

1) Whether there is a ground for disposition

A) Article 18(1)1 of the Broadcasting Act, Article 17(1) of the Enforcement Decree of the Broadcasting Act, and attached Table 1-2 provide that when a broadcasting business operator obtains a renewed license or renewed approval under Article 17 of the Broadcasting Act by fraudulent or other illegal means, a business operator shall take a disposition for six months of business suspension or six months of the reduction of the term of validity of a license and approval. Here, "where the renewed approval is obtained by fraudulent or other illegal means" means the case where the renewed approval under Article 17 of the Broadcasting Act is obtained through a deceptive scheme or other acts deemed unfair by social norms, even though it is impossible to obtain the renewed approval under normal procedures.

B) On November 21, 2014, the Plaintiff’s representative director, from December 5, 2008 to October 2, 201, was sentenced to two years of imprisonment for occupational embezzlement and breach of trust taking place on December 21, 201, with respect to the criminal facts, such as “the Plaintiff’s request was made by means of force to provide various convenience in relation to the period of broadcast, frequency of broadcast, etc. from the home shopping mall operator to January 1, 201, and received a total of KRW 70 million over 14 times,” and the Plaintiff’s former officer G received some money from six (6) operators of the Home shopping event operator including the Plaintiff’s total amount of KRW 908,087,70 from the total amount of KRW 127 times to the total amount of KRW 250,000 from the total amount of KRW 25,000 from the total of 127,000 to the total amount of money and valuables included in the instant criminal acts.

However, in full view of the following circumstances acknowledged by the respective statements and arguments stated in Gap evidence Nos. 3, 6 through 11, 20, 21, 23, 24, 28 through 34, Eul evidence Nos. 4, 9, 10, and 12, the above facts alone are difficult to deem that the plaintiff received the approval of the instant case by false or other unlawful means, and there is no other evidence to acknowledge it, and thus, the defendant's disposition of the instant case is unlawful as the grounds for its disposition do not exist.

① On October 7, 2014, before submitting the primary business plan to the future department, the Plaintiff prepared and sent the instant text No. 1 by e-mail at the request of a public official in charge of the future department C. On February 2, 2015, before submitting the second business plan, the Plaintiff prepared and sent by e-mail the instant text No. 2 supplementing the content of the instant text No. 1 at C’s request. Each of the above documents, including F and G, includes 10 former and incumbent positions and names (F is the real name in the case of the Plaintiff’s former and incumbent officers and employees who were charged with detention or non-detained due to the suspicion of breach of trust and occupational embezzlement and occupational embezzlement, and does not include the remaining parts excluding sex in the case of the remaining executives and employees).

② Since February 2015, C prepared a document stating "the result of the judgment related to TV home shopping supply costs". The document contains the following: (a) suspicion of crimes against 10 executives and employees, including F and G, and the trial result and trial progress; and (b) the document in question states "3 cases of embezzlement, 8 cases of breach of trust," including the number of occupational embezzlement and the number of property in breach of trust; and (c) 3 cases of embezzlement, 8 cases of breach of trust." In addition, C prepared a document stating "the main point in preparation for the National Assembly" on February 24, 2015 and April 10, 2015; (b) the document stating that "the results of the judgment related to the second sentence of this case, including F and G, were stated in the document stating that "the results and trial proceedings of the judgment related to the Plaintiff's 10 executives and employees," including the two sentence of this case, were examined by the Plaintiff's 8th executive officers and employees of this case's report on the crime of breach of trust."

③ On June 23, 2014, the Seoul Central District Prosecutors’ Office announced the investigation results that “F and 10 executives and employees, including former representative director F and former executives G, of the Plaintiff, receive money and valuables from the trading company in return for illegal solicitation, and thereby bring a prosecution for detention or non-detained for suspicion of breach of trust and occupational embezzlement.” After which F is deemed as embezzlement and occupational embezzlement on November 21, 2014, and G was convicted on the charge of breach of trust and occupational embezzlement on July 11, 2014, and was reported to a majority of the contents related thereto.

④ Even if the future officers in charge of the renewal of the instant business plan were to have eight persons involved in the receipt of breach of trust, each of the above documents can be easily known that there is a difference in the number of employees involved in receipt of breach of trust (7th business plan) and six (2) business plans in each of the instant business plans. Although the number of employees involved in receipt of breach of trust is not indicated in the first and second copies of the instant business plan, the remaining officers except F, are not indicated in the name, taking into account the punishment details, the progress of the lawsuit, positions and prosecution reports, etc., the above future public officials were sufficiently excluded from the number of employees and employees involved in the second business plan and the number of employees related to receipt of breach of trust (7th business plan) and the second and second copies of the instant business plan. However, the difference in the number of employees and employees related to receipt of breach of trust in the first and second copies of the instant business plan is sufficiently excluded from the number of employees and employees involved in the second copies of the instant business plan.

(5) The review of a future chief executive officer related to the renewal of a program provider is not limited to the formal review on whether the descriptions in the application are not defective and the specified documents are met, but to the formal review on whether the relevant Acts and subordinate statutes are met through the data submitted by the program provider and the contents of the relevant project and their suitability. To this end, a practical review is conducted on whether the application satisfies the requirements prescribed in the relevant Acts and subordinate statutes and determine the renewed approval by conducting quantitative assessment and regular evaluation in accordance with the standards set by the Defendant. A future executive officer in charge of the renewed approval is in charge of the renewed approval, including the program plan, shall examine all the documents submitted by the applicant, and shall actively examine such documents as the applicant’s request for supplementation or explanation. In addition, even the notice of the renewed approval in this case may request the future director to verify whether the submitted documents are insufficient or necessary to verify the contents of the submitted documents, and may request the future director to supplement the submitted documents and notify the matters not submitted, and the future director may request the submission of supplementary data, such as supplementary data, in addition to the documents submitted during the review process.

6) In addition, the subject of the re-approval examination of this case, the points of the above item were calculated in advance by future officers and employees, and the review committee considered the opinion about whether the crime of executives and employees whose conviction was not finalized under the principle of presumption of innocence can be included in the subject of review. In addition, the review committee decided to reduce the re-approval period from 5 to 3 years by considering the fact that the judgment of conviction was rendered in the lower court in relation to the act of corruption of executives and employees such as F. etc.

7) The Defendant asserts to the effect that the number of executives and employees related to the violation of trust in the first and second business plan of this case was less than the number of executives and employees related to the violation of trust in the second and second business plan of this case, and that this constitutes a false or other unlawful method. However, it is difficult to view that the Plaintiff’s content and method of preparing the Plaintiff’s first business plan concerning the case where its executives and employees are subject to criminal punishment for misconduct in this case is in violation of the methods stipulated in the basic plan and notice of approval of this case. The Plaintiff’s violation of trust is divided into occupational embezzlement and breach of trust. The Plaintiff’s “non-performance of trust” column included F in the business plan of this case’s 1 and second business plan’s 20th business plan’s 1 and 20th business plan’s 20th business plan’s 1 and 20th business plan’s 20th business plan’s 1 and 20th business plan’s 20th business plan’s 1 and 20th business plan.

8. In addition, the defendant is a public official in charge of the future department in the situation that the procedures for renewed approval are not specifically implemented, such as the case of the first and second cases of this case where the basic plan for renewed approval of

However, the author argues that the re-approval review for a program provider is merely an unofficial data submitted upon the personal request of the Plaintiff. However, the author argues that ① the re-approval review for a program provider is based on not only on the project plan but all data submitted during the review process, ② the prosecution’s investigation results on the Plaintiff’s acts of corruption are published on June 2014, and the future department has actively expressed its position to strengthen the re-approval standards for a home shopping company. C has directed the Plaintiff, etc. to initiate the re-approval in advance from September 2014, 2014, which was before the formation of a TF Team in preparation for the re-approval, and the first and second copies of this case were the same as the one of the first and second copies of this case, at the

It is difficult to accept the defendant's assertion that the first and second texts of this case are not related to the review when considering the following facts: (a) the record was prepared and submitted; (b) C, H, D, the Board of Audit and Inspection, investigative agencies, and relevant criminal trials, which are public officials of the future department in charge of the instant renewed approval, submitted data necessary for the review of re-approval in the process of the examination of re-approval; (c) the officer's criminal acts in the items of measurement and evaluation were submitted from each home shopping company, and reported to the applicant by referring to the press reports in relation to the documents and home shopping corruption prepared on February 3, 2015; and (d) the officer's criminal acts in the items of measurement and evaluation were verified by referring to the press reports reported in relation to the results of the trial prepared on February 3, 2015; and (d) the future division received the request from the plaintiff during the process of the re-approval examination.

(9) On February 26, 2016, the Board of Audit and Inspection requested a disciplinary action against future vice Ministers in charge of the renewed approval of this case, and there is a difference between the details of criminal punishment of 10 former and incumbent executives and employees in the first and second business plans of this case. Thus, as for future vice public officials in charge of the renewed approval of this case, they should have sought opinions from the relevant agencies in accordance with the basic plan, etc. of the renewed approval of this case and verified the contents of each of the above business plans, notwithstanding the fact that the Board of Audit and Inspection requested a disciplinary action against the future vice Ministers in charge of the renewed approval of this case, and submitted it to the Reapproval Deliberation Committee, which is on the ground that they violated the duty of good faith under Article 56 of

2) Whether discretionary power is deviates from or abused (family judgment)

A) Whether a punitive administrative disposition deviates from or abused the scope of discretion under the social norms ought to be determined by comparing and comparing the degree of infringement on public interest and the disadvantage suffered by the other party to the disposition, by objectively examining the content of the violation as the grounds for the disposition, the public interest purpose to be achieved by the relevant disposition, the relevant circumstances, etc. (see, e.g., Supreme Court Decision 2001Du1083, Dec. 12, 2003).

B) Even if the Plaintiff received the renewed approval of this case, it constitutes a false or other unlawful way to not state F and G’s act in breach of trust in the business plan submitted by the Plaintiff to the Defendant. In full view of the following circumstances acknowledged by the Plaintiff’s respective entries in the above recognized facts, Gap’s evidence Nos. 13 through 18, and Eul’s evidence Nos. 1 through 3, and the purport of the entire pleadings, the instant disposition taken by the Defendant against the Plaintiff is unlawful as it goes against the principle of proportionality and is against the principle of discretionary power, as it excessively exceeds the public interest to be achieved.

① Matters concerning criminal acts committed by executives and employees, such as corruption, related to the business operation, were introduced into the subject of the re-approval examination of this case, and the pre-evaluation was conducted to include matters related to the criminal acts committed by executives and employees in the business plan was conducted. The first introduction was made through the instant re-approval plan, detailed plan, etc. as the social criticism was raised against the supply cost and unfair acts of home shopping companies, and program providers, such as the Plaintiff, etc., submitted the business plan to the Defendant without clearly stipulating the type and scope of crimes committed by the executives and employees subject to the re-approval,

② At the request of a public official of the future division in charge of the instant re-approval, the Plaintiff prepared and sent the instant case Nos. 1 and 2, stating the crime of taking property in breach of trust by F and G. Based on each of the above documents, the Plaintiff’s internal documents related to the Plaintiff’s act of taking property in breach of trust by F and G were prepared several times in the future, and even though the crime of taking property in breach of trust by F, etc. was reported several times in the media, the future public officials of F, etc. calculated the quantitative evaluation scores in accordance with the second business plan submitted by the Plaintiff and presented them to the Review Committee, and thereafter the said evaluation scores became final and conclusive, and the Plaintiff was subject to the re-approval of this case.

③ Among the points 1,00 of the total examination items for renewed approval, the points related to F and G criminal conduct in breach of trust are limited to eight points, and the Plaintiff excluded the above points, at least 650 points in total shall obtain at least 650 points. In addition, even if the Plaintiff obtains the points corresponding to the acceptance in relation to the items subject to excessive approval, it is possible to obtain conditional renewal, not to refuse the renewal, but to receive conditional renewal, and the Plaintiff was convicted by F and other officers and employees of the lower court in the course of the decision of the Review Committee, and the renewed approval period was reduced from five years to three years.

④ The Defendant’s instant disposition completely prevents the broadcast transmission on the presentation and sale of goods during the off-time period, which is the highest viewing rate and sales, for six months. The Plaintiff appears to have suffered damage, such as the decline in sales from the instant disposition at KRW 24 consecutive hours, as well as the decline in sales from the said disposition to the KRW 24 consecutive hours, by taking into account the characteristics of the home shopping companies that mainly carry on the presentation and sale of goods through TV.

⑤ A large number of collaborative companies related to the Plaintiff are small and medium collaborative companies and single trading companies. In addition, the Plaintiff has various cooperative relations with their home companies, call center companies, computer service companies, etc., and there are considerable number of employees employed by the above collaborative companies. In the event that the Plaintiff is unable to operate the business during the six-month period of the instant disposition, each of the above collaborative companies may incur substantial economic damages, as well as some of the small and medium collaborative companies and single trading companies appear to have concerns over bankruptcy. In order to prevent supply cost and unfair trading of 16 program providers, it is necessary to impose a certain amount of administrative sanctions on the violation of the Broadcasting Act against the Plaintiff. However, considering the circumstances leading up to violation of the Plaintiff’s Broadcasting Act, the size and history of the Plaintiff company, the details of the implementation of the instant disposition, and the degree of damage to the Plaintiff and the cooperative companies caused by the instant disposition, it is difficult to view that the instant disposition is too harsh to the Plaintiff due to the instant social or economic disposition, which is sufficient to consider the Plaintiff’s damage to the Plaintiff.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is deemed that there is an urgent need to suspend its effect in order to prevent irrecoverable damage to the plaintiff caused by the disposition of this case, and even if the validity of the disposition of this case is suspended, it is not likely to have a significant impact on public welfare. Thus, the validity of the disposition of this case shall be suspended ex officio until the appellate judgment of this case is rendered. It is so decided as per Disposition.

Judges

The presiding judge, Yoon-sung

Judges Kim Jae-han

Judges Kang Dong-han

Note tin

(i)The Viewing rate and the total selling rate are high, the 8:11 o'clock 11 o'clock o'clock 8:11 o'clock o'clock.

2) On June 17, 2015, the appellate court (Seoul High Court 2014No3735) reversed the judgment of the first instance court, and sentenced the two-year suspended sentence, and then sentenced the two-year suspended sentence.

The High Court (Supreme Court 2015Do9895) is continuing.

3) From the appellate court (Seoul High Court 2014No2140), G’s appeal was dismissed on November 28, 2014, and the judgment of the first instance court became final and conclusive around that time.

4) G means G.

5) G means G.

6) means F;

7) In the case of F, F was included in the number of occupational embezzlements and occupational embezzlements.

심급 사건

서울행정법원 2017.9.28.선고 2016구합71423

-서울고등법원 2018.9.14.선고 2017누77895

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