2016Nu4664 Revocation of a warning

Central Marine Development Corporation

The Director of Incheon Regional Maritime Affairs and Fisheries

Incheon District Court Decision 2015Guhap53453 Decided May 19, 2016

September 7, 2016

October 26, 2016

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The Defendant’s warning disposition against the Plaintiff on September 18, 2015 is revoked. 2. The purport of the appeal is revoked.

The judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

1. Quotation of the first instance judgment

The reasoning of the judgment of this court is as stated in the reasoning of the judgment of the court of first instance, except for adding the following judgments, so it is cited by Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

2. Determination on this safety defense

The term "administrative disposition", which is the object of an appeal litigation, refers to, in principle, an act of an administrative agency's public law as an act that directly affects the rights and obligations of the general public by ordering the establishment of rights or the burden of obligations, or giving rise to other legal effects, etc. However, even if the grounds for a certain disposition are stipulated in administrative rules, if the disposition directly affects the rights and obligations of the other party by ordering the other party to establish rights or the burden of obligations, or causing other legal effects, it shall also be deemed an administrative disposition that is the object of an appeal litigation (see, e.g., Supreme Court Decisions 2001Du3532, Jul. 26, 2002; 2003Du10251, Nov. 26, 2004).

Meanwhile, the issue of whether a certain act of an administrative agency can be the subject of an appeal cannot be determined abstractly, and in a specific case, an administrative disposition is an enforcement of law with regard to specific facts conducted by an administrative agency as the subject of public authority, which directly affects the rights and obligations of the people. In mind, the decision should be made individually by taking into account the content and purport of the relevant Acts and subordinate statutes, the subject, content, form, and procedure of the act, the actual relation between the act and disadvantage suffered by interested parties, such as the other party, and the principle of administration by the rule of law, and the attitude of the administrative agency and interested parties related to the pertinent act (see, e.g., Supreme Court Decisions 91Nu1714, Jan. 17, 1992; 2008Du167, Nov. 18, 2010).

Pursuant to the above legal principles, Article 44 and [Attachment 15] of the former Enforcement Rule of the Marine Environment Management Act provides that if a marine environmental manager fails to conduct business within one year after registration or has no business performance for more than one year continuously, the registration shall be cancelled when the first violation was committed, six months after the second violation, six months after the second violation, and the third violation was committed. In full view of the above points and the purport of the entire arguments, the warning disposition of this case due to the first violation was an act that directly affects the other party’s rights and obligations, such as the requirements for business suspension when the violation was subsequently committed. Accordingly, the Defendant’s defense on safety is not acceptable.

3. Conclusion

Therefore, the first instance judgment is just and the defendant's appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Mobilization by the presiding judge

Judges Yoon Jong-dae

Judge Lee Jae-soo