[1] Whether an applicant who completed the registration of multi-level marketing business immediately before receiving a corrective order ordering the registration of multi-level marketing business from the Fair Trade Commission may file an application seeking suspension of execution on the ground of illegality of the corrective order (affirmative

[2] The meaning of "irreparable damage", which is an element for suspension of execution under Article 23 (2) of the Administrative Litigation Act, and the method of determining whether "emergency measures are needed to prevent irrecoverable damage caused by disposition, etc., execution or the continuation of the procedure"

[3] The meaning of "constition to have a significant impact on the public welfare" as a obstacle to the suspension of execution as stipulated in Article 23 (3) of the Administrative Litigation Act, and the location of its assertion and responsibility for the explanation thereof (=administrative agency)

[4] Whether the validity of an administrative disposition or the suspension of execution itself should not be clear that the applicant's claim on the merits is groundless due to the suspension of the validity of administrative disposition or the suspension of execution (affirmative)

[1] Article 23 of the Administrative Litigation Act / [2] Article 23 (2) of the Administrative Litigation Act / [3] Article 23 (3) of the Administrative Litigation Act / [4] Article 23 of the Administrative Litigation Act

[2] [3] [4] Supreme Court Order 2004No6 dated May 17, 2004 / [2/3] Supreme Court Order 2003No41 dated May 12, 2004 / [4] Supreme Court Order 2005No85 dated July 13, 2007

Fair Trade Commission (Law Firm ridge, Attorneys Gyeong-chul et al., Counsel for the defendant-appellant)

1. The term “the term “the term” means “the term” means “the term “the term” means “the term” means “the term.

Seoul High Court Order 2007Ka264 dated October 26, 2007

The reappeal is dismissed.

The grounds of reappeal are examined.

1. As to the ground of reappeal related to the existence of interest in the application for suspension of execution

A. The former Door-to-Door Sales Act (amended by Act No. 8357 of Jul. 19, 2007 and enforced on Oct. 19, 2007) provides that a person who establishes, manages, or operates a multi-level marketing organization without registering a multi-level marketing business shall be punished by imprisonment or a fine (Article 51(1)1), and that a person who fails to comply with a corrective order or repeats a violation shall be punished by a punitive administrative disposition or imprisonment or a fine (Articles 42(4) and 53(1)10). Thus, even if an applicant pre-registered a multi-level marketing business with a corrective order of this case prior to receiving a corrective order of this case from the respondent prior to receiving a corrective order of this case, each of the above penalties or administrative dispositions may not be deemed as remedying any defect of each of the corrective orders of this case, and thus, the respondent can not be deemed to have filed a petition for re-appeal to suspend the execution of each of the corrective orders of this case after completing the registration.

B. Paragraph 4 of the instant corrective order (paragraph 5 of the reappeal is a clerical error) is not a mere omission by an administrative agency, but an administrative disposition prohibiting an applicant from performing certain acts by taking the form of an omission order and constitutes an act of an administrative agency. Therefore, insofar as the applicant claims that the current sales method does not correspond to multi-level marketing, it shall be deemed that there is a benefit to seek suspension of the execution. Accordingly, this part of the grounds for reappeal by the respondent shall not be accepted.

2. As to the grounds of re-appeal relating to likelihood of irrecoverable damage

"A loss difficult to recover", which is a requirement for suspension of execution as stipulated in Article 23 (2) of the Administrative Litigation Act, means a loss that cannot be compensated in money, barring any special circumstance. This refers to a loss that is tangible or intangible where monetary compensation is impossible or where it is considerably difficult for the party against whom an administrative disposition was taken to refer to the case where monetary compensation is impossible or where it is considerably difficult to check for reference. Whether there is "emergency necessity to prevent irrecoverable damage from being caused by the disposition, etc. or execution or the continuation of procedure" shall be determined specifically and individually by comprehensively taking into account not only the nature and form of the disposition, the nature, content and degree of the damage the other party to the disposition entered, the method and degree of recovery and monetary compensation, the degree of winning the claim (see, e.g., Supreme Court Order 2003Da41, May 12, 2004; Supreme Court Order 204Da646, May 17, 2004).

In full view of the nature, mode, and content of each corrective order of this case, the nature, content, and degree of damage inflicted on the applicant who is the other party to the disposition, and the methods and difficulties of restitution and monetary compensation, etc., when the validity of each corrective order of this case is continued, the applicant shall incur losses that are reduced in sales or sales expansion rate due to the dynamics of the salesperson, etc., and the overall reorganization or reduction of the sales organization, etc. of the current sales organization, and such losses are difficult to determine the scope thereof. Thus, to prevent the above damages of the applicant, it shall be deemed that there is an urgent need to suspend the enforcement of each corrective order of this case, as there is no other appropriate method except to suspend the validity of each corrective order of this case.

In the same purport, the court below is just in holding that there is an urgent need to prevent irrecoverable damage caused by the maintenance of the validity of each corrective order of this case, and there is no error in the misapprehension of legal principles as to irrecoverable damage and urgency as stipulated in Article 23 (2) of the Administrative Litigation Act as to the grounds for reappeal.

3. As to the ground of re-appeal relating to concerns over a significant impact on public welfare

“The possibility of seriously affecting the public welfare” as a obstacle to the suspension of execution as stipulated in Article 23(3) of the Administrative Litigation Act refers not to the possibility of infringing the general and abstract public interest, but to the specific and individual public interest related to the execution of the pertinent disposition, and the burden of asserting and demanding the suspension of execution is against the administrative agency (see Supreme Court Order 2003Ma41, May 12, 2004; Supreme Court Order 2004Ma6, May 17, 2004, etc.).

In the same purport, the court below is just in holding that the applicant's business has been operated without causing any particular social controversy for a long time and there seems to be no possibility of serious harm to the public interest if the validity of each corrective order of this case is suspended on the ground that there seems to be such danger in the future. There is no error of law in the misapprehension of legal principles as to concerns about significant impact on public welfare such as

4. As to the ground of reappeal related to the existence of grounds for appeal on the merits

The suspension or suspension of execution of an administrative disposition is intended to protect the applicant's status until the applicant obtains a favorable judgment in the case on the merits of the case, and it is contrary to the purport of the system to recognize the validity or suspension of execution of a disposition even though there is no possibility of revocation of the disposition in the lawsuit on the merits of the case, and therefore it is contrary to the purport of the system to recognize the validity or suspension of execution of a disposition even though there is no possibility of revocation of the disposition in the lawsuit on the merits of the case, and it is not clear that the applicant's request on the merits of the case itself is not reasonable (see, e.g., Supreme Court Order 2004Ma6, May 17, 2004; Supreme Court Order 200

In the same purport, the court below is just in holding that this case does not constitute a case where there is room for legal dispute as to whether the applicant's business type of door-to-door sales business constitutes multi-level marketing business, and there is no error in the misapprehension of legal principles as to the possibility of winning the claim on the merits, such as the grounds for reappeal.

5. Conclusion

Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Nung-hwan (Presiding Justice)