(a) Difference between delegation of authority and internal delegation;

(b) Whether a disposition of revoking permission for the petroleum selling business by the head of Gun is appropriate (negative);

A. Regarding the fact that the delegation of administrative authority is to transfer a specific authority to another administrative agency in accordance with the law so that it can exercise the authority of the delegated administrative agency, so that the legal attribution of the authority is changed, the internal delegation of administrative authority is to make its subsidiary bodies or subordinate administrative agencies carry out the authority in fact in order to promote the convenience of internal administration of affairs by the administrative agency. In the case of the delegation of authority, the delegated administrative agency may exercise its authority in its own name, but in the case of internal delegation, the delegated administrative agency can exercise its authority only in the name of the delegated administrative agency and cannot exercise its authority in its own name.

B. The delegation of administrative authority is recognized only when a law permits the delegation of authority to the extent that it alters the legal attribution of authority. According to Articles 13(3) and 23(1) of the Petroleum Business Act and Article 25(1)2 of the Enforcement Decree of the same Act, the authority on the cancellation of permission for a petroleum retail business is apparent that the authority on the cancellation of permission for a petroleum retail business is not delegated to the head of the Si/Gun under the Petroleum Business Act. In addition, according to Article 95(1) of the Local Autonomy Act, the head of the local government may delegate part of the authority to the head of the competent Si/Gun as prescribed by the Municipal Ordinance. However, if the Do governor merely delegates the authority on the cancellation of permission for a petroleum retail business to the head of the competent Si/Gun without delegation of the authority to the head of the competent Si/Gun under the Ordinance, the head of the Gun can not exercise his authority under his own name, apart from the fact that the Do governor actually exercises the authority on the cancellation of permission for a petroleum retail

(a) Article 1 of the Administrative Litigation Act; Article 13(3) and Article 23(1) of the Petroleum Business Act; Article 25(1)2 of the Enforcement Decree of the same Act;

Supreme Court Decision 86Nu569 Decided December 9, 1986, 86Nu757 Decided May 26, 1987, Supreme Court Decision 88Nu10985 Decided March 14, 1989

Plaintiff

[Defendant, Appellee] Plaintiff 1 and 3 others (Law Firm Namyang-gu, Counsel for defendant-appellant)

Seoul High Court Decision 88Gu5763 delivered on December 22, 1988

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

Before determining the grounds of appeal by the Defendant’s attorney, we examine ex officio whether the revocation of the permission for the instant petroleum selling business was conducted by the administrative authority.

With regard to the delegation of administrative authority to an administrative agency by transferring a specific authority to another administrative agency in accordance with the law and allowing it to exercise the legal authority of the delegated administrative agency, so the internal delegation of administrative authority is to make its subsidiary agency or subordinate administrative agency carry out the authority in fact in order to promote the convenience of internal administrative affairs of the administrative agency. Thus, in the case of delegation of authority, the delegated administrative agency may exercise its authority under its own name. However, in the case of internal delegation, the delegated administrative agency can exercise its authority only under the name of the delegated administrative agency, and in the case of internal delegation, it is not possible to exercise its authority under its own name. Furthermore, as the delegation of administrative authority is to change the legal attribution of the authority as above, it shall be recognized only when the law permits it (see, e.g., Supreme Court Decisions 86Nu569, Dec. 9, 198; 86Nu757, May 26, 198; 8Nu10985, Mar. 14, 1989).

However, according to Article 13(3) of the Petroleum Business Act, the authority on cancellation of permission for a petroleum retail business is stipulated as belonging to the Minister of Power Resource. Thus, Article 23(1) of the same Act and Article 25(1)2 of the Enforcement Decree of the same Act stipulate that the Minister of Power Resource shall delegate his authority on cancellation of permission for a petroleum retail business under Article 13(2) of the same Act to the Mayor of Seoul Special Metropolitan City, Metropolitan City, or Do governor. Thus, it is apparent that the authority on cancellation of permission for a petroleum retail business is not delegated to the head of Si, Gun, or subordinate administrative agency under the Petroleum Business Act. Meanwhile, Article 95(1) of the Local Autonomy Act provides that the head of a local government may delegate part of his authority to a subsidiary agency, affiliated administrative agency, or subordinate administrative agency under the Ordinance, and it is clear that the Governor of Gyeonggi-do exercises his authority on cancellation of permission for a petroleum retail business under the name of the head of the Si, the head of the Si, and the head of the Gun before the Gyeonggi-do.

Therefore, since the cancellation disposition of the permission for the instant petroleum retail business was made by the administrative agency without authority, the court below should have revoked the revocation disposition of the permission for the instant petroleum retail business on the same ground. However, the court below should have determined that the revocation disposition of the permission for the instant petroleum retail business was unlawful by deviating from the scope of discretion and making it illegal. The judgment of the court below is obvious that such decision of the court below is unlawful, but it is the same as the conclusion that the disposition of the revocation of the permission for the instant petroleum retail business was illegal. Thus, as seen above, the judgment of the court below did not affect the conclusion of the judgment.

Ultimately, there is no reason to argue that the lower court’s revocation of permission for the instant petroleum selling business is illegal.

Therefore, the defendant's appeal is dismissed, and the costs of appeal are assessed against the losing defendant. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Jae-sung (Presiding Justice)