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서울행정법원 2015. 5. 29. 선고 2015구합51521 판결
[등록취소처분취소][미간행]
Plaintiff

119 et al. (Law Firm Western, Attorneys Kim Jong-jin, Counsel for the defendant-appellant)

Defendant

Seoul Special Metropolitan City Mayor (Law Firm Lee & Lee, Attorneys Han Han-soo, Counsel for defendant-appellant)

Conclusion of Pleadings

May 15, 2015

Text

1. The Defendant’s revocation of each registration made against Plaintiff Co., Ltd., Ltd., Ltd., Plaintiff 119 on October 22, 2014, Plaintiff Co., Ltd., Future 119, Plaintiff Pool Co., Ltd., and Plaintiff’s Dokdo building19 shall be revoked.

2. The Plaintiff’s future aid119 claim is dismissed.

3. Of the costs of litigation, the part arising between the Plaintiff and the Defendant is assessed against the Defendant, and the part arising between the Plaintiff, the Plaintiff, the Plaintiff’s future aid19, the 119, the Plaintiff’s future aid company, and the Defendant.

Purport of claim

The defendant's revocation of each of the dispositions against the plaintiffs on October 22, 2014 shall be revoked.

Reasons

1. Details of the disposition;

A. On November 2, 2012, the Ulsan Metropolitan City Mayor revoked the registration of the prepaid installment business operator on the ground of Articles 40(1)1 and 40(2)3 of the Installment Transactions Act (hereinafter “Installment Transactions Act”) with respect to the development of CM, which was registered as a controlling shareholder by Nonparty 1, and notified the Defendant on November 8, 2012.

B. On September 5, 2014, the Trade Aid and Guarantee Mutual Aid Association (hereinafter “Mutual Aid Association”) terminated a mutual aid agreement with the Plaintiff, Future 119 (former Trade Name: Added Mutual Aid and Aid Co., Ltd.) on the grounds that the mutual aid agreement was deducted and secured money unpaid, etc. on the same day, and notified the Defendant of the fact on the same day.

C. Accordingly, on October 22, 2014, the Defendant revoked the registration of an prepaid installment business operator on the ground that, with respect to Nonparty 1, who was the controlling shareholder at the time of the revocation of registration of the development of the CM, was an officer of the company (see Articles 40(2)2 and 20 subparag. 4 of the Installment Trade Act) and on the ground that the mutual aid agreement was terminated (see Article 40(2)3 of the Installment Trade Act, hereinafter “Plaintiff 5”) with respect to the Plaintiff Company’s future commercial assistance19 (hereinafter “Plaintiff 5”), the registration of the prepaid installment business operator was revoked (hereinafter collectively referred to as “instant first disposition,” and the registration revocation of registration revocation of Plaintiff 5’s registration revocation of the registration revocation of the registration revocation of Plaintiff 1 or 4).

D. The details of appointment and resignation of Nonparty 1 as the internal director or representative director of Plaintiff 1 through 4 are as follows:

On October 22, 2014, the details of Nonparty 1’s appointment and retirement before the mutual change of the sequences contained in the main text, the representative of Plaintiff 1 Co., Ltd. as of October 22, 2014, and Nonparty 1 on August 19, 2014, appointed on September 16, 2014, following Plaintiff 2 Co., Ltd. Future119, Plaintiff 2, who was appointed on November 20, 2014, Plaintiff 3 Co., Ltd., Ltd., taking office on January 3, 2012, 3, 2019, taking office on April 22, 2013, Nonparty 3, who retired on April 22, 2013, the Plaintiff 4 Dokdo High Military Welfare Co., Ltd., Ltd. under Article 119 of the National Defense Welfare Act, taking office on July 26, 2012, and retired on July 23, 2013.

[Ground of Recognition] Facts without dispute, Gap 2, 3, Eul 1 and 3 (including the number of each branch); the purport of the whole pleadings

2. Whether the first disposition in this case is lawful

A. The plaintiff 1 to 4's assertion

Article 40 (2) 2 of the Installment Trade Act (hereinafter “instant legal provision”) refers to a case falling under the grounds for disqualification as stipulated in each subparagraph of Article 20. However, as Nonparty 1 was not an executive of Plaintiff 1 or a company at the time of the instant first disposition, the said disposition based on the instant legal provision is unlawful.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) Interpretation of the legal provisions of this case

As examined below, in light of the language and purport of the instant legal provision and relevant Acts and subordinate statutes, the legislative intent, the principle of constitutional interpretation, and all the circumstances, etc., the term "cases falling under the grounds for disqualification of each subparagraph of Article 20 (hereinafter "Disqualifications for registration")" in the said provision means cases falling under the grounds for disqualification at the time of a disposition by an administrative agency.

A) When the concept of a certain Act is different and it is possible to interpret several concepts within the framework of the language, it shall choose an interpretation consistent with the Constitution to form a uniform legal order with the Constitution as the highest law (see Supreme Court Decision 2008Do6693, Apr. 14, 2011). The proviso of Article 40(2) of the Installment Transactions Act provides that an administrative agency shall, in cases falling under the instant legal provision, cancel the registration of a registered business if it is necessary to cancel the registration of a registered business. This provision provides that “Where the registration becomes disqualified” as a ground for voluntary cancellation of registration, or Article 83(2) of the Framework Act on the Construction Industry provides that “where a person becomes disqualified for registration as an executive of a construction business registered as the one of the executives of a construction business becomes disqualified after the date of revocation of registration, it shall be excluded from the case where it is uniformly determined that the registration becomes void within three months after the date of revocation of registration without any specific reason for disqualification.”

B) Meanwhile, during the registration of Article 20 of the Installment Transactions Act, the term “a company where a person who was sentenced to a suspended sentence for violating this Act and was sentenced to a fine for violating this Act” or “a company where three years have not yet elapsed since the cancellation of the registration” or “a company where five years have not yet elapsed since the cancellation of the registration,” etc. In light of the language and text of the above provision, it is reasonable to interpret the term “where a person falls under the grounds for disqualification under each subparagraph of Article 20” as “at the time of the disposition.”

C) The Defendant asserts that if the registration cannot be revoked on the ground that the pertinent ground for disqualification was eliminated at the time of the disposition, it could not be subject to ex post punishment as to the past violation of the law, and that the act would escape the purport of the provision on the grounds of the necessary revocation of registration by repeating the act of eliminating the grounds for disqualification immediately before the disposition of revocation. However, if a report following the above act of eliminating the grounds for disqualification is filed falsely, it is possible to impose a corrective measure or order the suspension of business (see Articles 39, 40(1)1, and 18(3) of the Installment Trade Act). Thus, it cannot be said that the revocation of registration pursuant to Article 40(2)2 of the Installment Trade Act is impossible, and it leads to an unreasonable result as seen above.

2) Whether the Plaintiff 1 through 4 falls under the legal provisions of this case

In light of the meaning of the legal provision of this case as seen earlier, the fact that Nonparty 1 was not an executive of Plaintiff 1 or 4 at the time of the first disposition of this case is seen as seen earlier. As such, Plaintiff 1 or 4 did not constitute “the case where Plaintiff 1 or 4 becomes disqualified” under the legal provision of this case, and thus, the first disposition of this case based on the legal provision of this case should be revoked unlawfully (for Plaintiff 1 and 2, the Defendant was appointed as an internal director again on November 20, 2014 and has been in office until now, the first disposition of this case is lawful. However, since whether the administrative disposition of this case is lawful is determined based on the law and fact-finding at the time of the disposition, so long as Nonparty 1 was not an executive of Plaintiff 1 or 2 at the time of the first disposition of this case, the above Defendant’s assertion is without merit).

3. Whether the second disposition in this case is legitimate

A. Plaintiff 5’s assertion

The Plaintiff 5 Company was terminated a mutual aid agreement with a mutual aid association because the Fair Trade Commission was unable to withdraw advance payment for the commercial aid fees paid by consumers due to the suspension of use 1) unfairly, but the Defendant’s revocation of the registration of the prepaid installment business operator pursuant to Article 40(2)3 of the Installment Transactions Act without considering all such circumstances, is unjust and unfair.

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

1) In order to preserve advance payment received from a mutual aid association and a consumer (hereinafter “instant mutual aid agreement”), Plaintiff 5 was in a state of entering into a mutual aid agreement (hereinafter “instant mutual aid agreement”) and was obligated to pay KRW 396,245,00 as the advance payment reserve rate increased from March 17, 2014 to 50% pursuant to the Installment Transactions Act, and the additional security reserve rate was increased from 40% to March 17, 2014. However, Plaintiff 5 continued to pay the remainder after paying KRW 100,000,000, and paid KRW 304,803,160 in total and interest for delay only on July 7, 2014.

2) As a result of the credit assessment conducted by a mutual-aid association based on the advance payment status, financial status, etc. from April 25, 2014 to July 12, 2014, Plaintiff 5, whose credit rating was adjusted to lower to grades 5 to 8 after August 1, 2014, was liable to pay an additional security amount of KRW 365,525,00,00 for the said credit rating, until August 18, 2014, but failed to pay it.

3) On August 5, 2014, Plaintiff 5 notified Plaintiff 5 that the instant mutual aid contract will be terminated if the instant company ceased the mutual aid contract on the grounds that Plaintiff 5 did not pay the mutual aid premium and additional security premium for July and did not notify the mutual aid association of the fact that the instant mutual aid contract was concluded even after the acquisition of shares on July 17, 2014.

4) As the suspension of the above mutual aid contract, the Financial Settlement Board suspended Plaintiff 5’s use of mms service on August 7, 2014 on the ground that there is a risk of civil petition when Plaintiff 5’s funds are withdrawn by mscam, and notified the said company that the mscam usage approval will be terminated if it fails to submit a plan to conclude consumer damage compensation compensation contract, etc. or a document proving that the said contract is in force by August 18, 2014.

5) By September 4, 2014, Plaintiff 5 terminated the instant mutual aid agreement on September 5, 2014 on the ground that Plaintiff 5 failed to resolve the grounds for suspending the said mutual aid agreement.

[Reasons for Recognition] Each entry of Gap evidence Nos. 6 through 8 (including branch numbers), and the purport of the whole pleadings

D. Determination

In light of the legislative intent of the Installment Transactions Act, which is to enforce consumer damage compensation insurance contracts, including a mutual aid agreement for the purpose of protecting the consumer rights and interests of prepaid installment contracts, and to prepare criminal punishment in the event of violation, it is highly necessary for the public interest to cancel the registration of the prepaid installment business operator when the mutual aid contract is terminated. ② The suspension of the mutual aid contract of this case not only did the above company fail to pay additional security deposits, but also did not notify the mutual aid association of the fact. The Financial Settlement Board also suspended the said mutual aid contract in accordance with the relevant internal regulations, and there is no other evidence to acknowledge that the Fair Trade Commission unfairly suspended the use of the MS to induce the closure of the business of the Plaintiff 5 company. ③ The Plaintiff 5 company had no reason to acknowledge that the Plaintiff 5 company had unfairly suspended its use, as claimed by the Plaintiff 5 company, in light of the fact that it could not be seen that the Plaintiff 5 company had suffered enormous damages due to the Plaintiff 5 company’s excessive excess of 250 million won due to credit rating adjustment as well as additional security deposits due to the Plaintiff 5 company.

4. Conclusion

Therefore, the plaintiff 1 through 4's claims are accepted on the grounds of their reasoning, and the plaintiff 5's claims are dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Kim Jong-Un (Presiding Judge)

(1) Cash Management Services: Enterprise Fund Management System;