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서울고등법원 2014. 5. 27. 선고 2013누28048 판결
[영업정지처분취소][미간행]
Plaintiff and appellant

Mmerd loan limited liability companies

Defendant, Appellant

Head of Gwangjin-gu Seoul Metropolitan Government

Conclusion of Pleadings

May 13, 2014

The first instance judgment

Seoul Administrative Court Decision 2012Guhap41530 decided September 12, 2013

Text

1. Revocation of a judgment of the first instance;

2. The Defendant’s disposition of suspending the entire business against the Plaintiff on December 5, 2012 is revoked for six months.

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

Purport of claim and appeal

It is so decided as per Disposition.

Reasons

1. Details of the disposition;

A. Determination of criminal punishment against the non-party 1 (the non-party 1) of the plaintiff's employee

The Plaintiff is a corporation that registered a credit business pursuant to the Act on Registration of Credit Business, etc. and Protection of Finance Users (hereinafter “Credit Business Act”), and its Enforcement Decree is “Enforcement Decree of the Credit Business Act.”

On September 14, 2011, Nonparty 1, an employee of the Plaintiff, was in violation of Article 9 subparag. 1 of the Fair Debt Collection Practices Act (hereinafter “Collection Practices Act”) and subject to punishment pursuant to Article 15(1) of the Debt Collection Act, and Nonparty 1 (hereinafter “Nonindicted Party 1”) committed a crime on the ground that Nonparty 1”) was at the time of and after having telephone conversations with the debtor, and was able to take a bath for each other, and that “I am to Busan. I am to the next week. I am to the next week.” The Seoul East East District Court (2012No710) threatened the debtor’s related person. On August 14, 2012, the said intimidation was in violation of Article 9 subparag. 1 of the Debt Collection Practices Act, and was in violation of Article 15(1) of the Debt Collection Act, and thus, it was not clear that Nonparty 1 (hereinafter “Nonindicted Party 1”) was at the time of committing a crime, and it was not clear to the extent that the judgment was pronounced (hereinafter.).

B. The defendant's disposition

On December 5, 2012, the Defendant issued a disposition of suspending entire business against the Plaintiff pursuant to Article 13(1) of the Credit Business Act for six months (from December 6, 2012 to June 5, 2013) (hereinafter “instant disposition”) on the ground that the Plaintiff violated Article 9 Subparag. 1 of the Claim Collection Act by assaulting, threatening, or using a deceptive scheme with respect to debt collection as seen above (hereinafter “instant disposition”). On the same day, the Plaintiff was also subject to the imposition of a fine for negligence on other grounds, but the imposition of the fine for negligence was contested in a separate proceeding in accordance with the relevant statutes, and thus, the instant violation of Article 11 of the Debt Collection Act, which constitutes the grounds for the imposition of the fine for negligence, is not the key issue of the instant case).

[Ground of recognition] Unsatisfy, entry of Gap evidence 1 to 5 (including virtual numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Non-existence of the grounds for disposition

The instant disposition is based on the premise that the Plaintiff, a debt collector, threatened his employee with the debtor, etc.; however, the Plaintiff’s representative did not intimidation the debtor, and instead, Nonparty 2 was subject to a disposition without suspicion pursuant to the investigation results by the prosecutor’s office in Seoul Dong-gu Seoul District Prosecutors’ Office (Evidence 6). The Plaintiff’s employee Nonparty 1 (the Nonparty 1) threatened the debtor, etc. should be deemed to be identical to the Plaintiff’s intimidation. The joint penal provisions under Article 16(b) of the Debt Collection Act and Article 20 of the Credit Business Act are applicable only to a fine, and it is unlawful to apply the instant disposition by applying the joint penal provisions.

2) A deviation from or abuse of discretionary power

In light of the fact that the Plaintiff is a corporation comprised of 114 employees, through which employee education was thoroughly conducted to prevent violation of relevant laws and regulations, and that employee benefits are paid as piece rates and thus the instant disposition becomes final and conclusive, the Plaintiff’s employees are placed in the actual position, and that the instant disposition was subject to a minor disposition of suspended sentence even in the relevant criminal judgment, taking into account the background of the occurrence of the relevant offense, etc., the instant disposition is an excessive disposition without reasonableness.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Whether a lawsuit is an interest in litigation

In a case where the effective period of an administrative disposition is fixed, the effect of the administrative disposition becomes null and void after the lapse of that period, so there is no legal interest in seeking confirmation of the cancellation or invalidation of the administrative disposition, barring any special circumstance to deem that there is a violation of any legal interest due to the remaining form and nature of the disposition after the expiration of that period. However, the record of such administrative disposition is deemed to be treated at a disadvantage in the future, and it is stipulated in Acts and subordinate statutes as being treated at a disadvantage in the future, and then a new punitive administrative disposition becomes effective according to the statutory aggravation requirements, if there is any special circumstance to deem that the remaining period of the preceding administrative disposition is in violation of legal interest (see Supreme Court Decision 2004Du14106, Mar. 25, 2005, etc.).

In the instant case, the Plaintiff filed the instant lawsuit on December 7, 2012 and filed an application for suspension of execution, and the court of first instance suspended the enforcement of the instant disposition until the judgment of the court of first instance was rendered, and the court of first instance subsequently rendered a judgment dismissing the Plaintiff’s claim on September 12, 2013, and there is no evidence to support the fact that the Plaintiff rendered a decision dismissing the Plaintiff’s application for suspension of execution on October 4, 2013, and that the execution of the instant disposition was suspended, unlike the record,. Therefore, it is apparent that the period of suspension six months after the instant disposition was suspended during the instant lawsuit. However, according to the criteria for suspension of business and cancellation of registration under Article 7-4(1) [Attachment 2] of the Enforcement Decree of the Credit Business Act, if the Plaintiff violated Article 9(1) of the Debt Collection Act once and twice, the registration must be revoked, and even if the Plaintiff’s application for suspension of execution was deemed to have been abandoned in the future as well as the legal interest in the instant disposition.

2) Whether there exist grounds for the disposition

Article 13(1)1 of the Credit Business Act provides that, if an “credit service provider, etc. violates Article 9 of the Act,” it may order the “credit service provider, etc. to suspend all or part of its business for a fixed period not exceeding one year in accordance with the guidelines prescribed by Presidential Decree.” Article 3(6) of the same Act provides that “credit service provider, etc.” means a person who has registered credit business, and a credit service provider, etc., under Article 2 subparag. 1(a)3 of the same Act provides that “if a credit service provider, etc. violates Article 13(1)1 of the Act, it shall not be deemed that the credit service provider, etc. were involved in any of the following acts in debt collection, it shall not be deemed that the credit service provider, etc. was not involved in the act of violating the Act, nor shall it be deemed that the credit service provider, etc. were involved in the act of violating Article 9(1)1 of the Act for the purposes of preventing any unlawful act, such as assault or arrest of the debtor or its related persons.” Article 2 subparag.

In the case of this case, the fact that Non-party 1 (the non-party 1) who is an employee of the plaintiff violated Article 9 of the Debt Collection Act by threatening the debtor's family. However, it appears that the plaintiff's employee committed a contingent act on the part of the debtor and dialogue with the debtor. There is no evidence to deem that the plaintiff's intent as a juristic person was involved in the act of aiding and abetting or conspiracy. Thus, the defendant's disposition of this case premised on the plaintiff's violation of Article 9 of the Debt Collection Act according to other legal interpretation is illegal.

Therefore, the disposition of this case must be revoked without any further review, and the plaintiff's assertion pointing this out is with merit.

3. Conclusion

If so, the plaintiff's claim is reasonable, and the judgment of the court of first instance which has different conclusions is unfair, so it is decided to revoke it. It is so decided as per Disposition.

[Attachment]

Judges Lee Jong-hun (Presiding Judge) (Presiding Judge)

관련문헌

- 정훈 종업원의 위법행위를 이유로 사용자에 대해 행정제재처분을 하기 위한 책임법리 : ‘대부업법’상 영업정지처분과 관련하여 공법연구 44집 3호 / 한국공법학회 2016

- 김용섭 2017년 행정법(I) 중요 판례 인권과 정의 제472호 / 대한변호사협회 2018

본문참조판례

서울동부지방법원(2012노710호)

대법원 2005. 3. 25. 선고 2004두14106 판결

본문참조조문

- 채권의 공정한 추심에 관한 법률 제9조 제1호

- 채권의 공정한 추심에 관한 법률 제15조 제1항

- 대부업 등의 등록 및 금융이용자 보호에 관한 법률 제13조 제1항

- 채권의 공정한 추심에 관한 법률 제11조

- 채권의 공정한 추심에 관한 법률 제16조

- 대부업 등의 등록 및 금융이용자 보호에 관한 법률 제20조

- 대부업 등의 등록 및 금융이용자 보호에 관한 법률 시행령 제7조의4 제1항

- 채권의 공정한 추심에 관한 법률 제9조

- 대부업 등의 등록 및 금융이용자 보호에 관한 법률 제13조 제1항 제1호

- 대부업 등의 등록 및 금융이용자 보호에 관한 법률 제3조 제6항

- 대부업 등의 등록 및 금융이용자 보호에 관한 법률 제2조 제1호

- 대부업 등의 등록 및 금융이용자 보호에 관한 법률 제2조 제3호

- 채권의 공정한 추심에 관한 법률 제2조 제1호

- 채권의 공정한 추심에 관한 법률 제2조 제4호

원심판결

- 서울행정법원 2013. 9. 12. 선고 2012구합41530 판결