(영문) 서울고등법원 2017.1.13.선고 2015누69463 판결

(1) The revocation of the permission for the establishment of a non-profit corporation that the Defendant rendered to the Plaintiff as of December 30, 2014 is revoked. (2) The remainder of the Plaintiff’s claims are dismissed.

2. One-half of the total costs of litigation shall be borne by the Plaintiff, and the remainder by the Defendant.

Purport of claim and appeal

The judgment of the court of first instance is revoked. The defendant's decision that the approval of a recycling business mutual aid association for the plaintiff on December 30, 2014 and the revocation of the permission for the establishment of a non-profit corporation is revoked.

Reasons

1. The summary of the case and the facts premised on the case

A. Case summary

After obtaining permission for establishment of a nonprofit incorporated association based on the Civil Act, this case is a matter of seeking revocation of authorization and revocation of establishment of a mutual aid association based on Article 27 (4) of the former Act on the Promotion of Saving and Recycling of Resources (amended by Act No. 13036, Jan. 2015; hereinafter referred to as the "Resources Recycling Act"). The first instance judgment rejected the Plaintiff’s claim for revocation of authorization and revocation of permission for establishment of a non-profit incorporated association based on Article 38 of the Civil Act on the grounds that the Plaintiff’s revocation of approval for recycling business based on Article 28-5 of the Resources Recycling Act, the competent administrative agency, and the cancellation of permission for establishment of a non-profit incorporated association based on Article 38 of the Civil Act does not meet the requirements of revocation of authorization and non-profit incorporated association under Article 28-5 of the Recycling of Resources Act and Article 38 of the Civil Act. The first instance judgment against the Plaintiff was based on its revocation and revocation of permission for establishment.

[Related Acts and subordinate statutes] Attached Form 1

B. Presumed factual basis

[Evidence A] 7-2, B-2, 3, 4, 8, 10, 11, 12, 37, 38 and the purport of the whole pleadings (1)

(A) The Plaintiff is a nonprofit incorporated association with the aim of contributing to saving resources and preserving the environment through recovery of waste mines, etc. and facilitation of recycling by acting for producers obligated to recycle wastes such as light, etc. (a) and thus, is a recycling business mutual aid association based on Article 27(1) of the Recycling of Resources Act (hereinafter “mutual aid association”). In the Republic of Korea, the Defendant is an administrative agency with the authority to authorize the establishment of mutual aid associations and to supervise mutual aid associations pursuant to Articles 28(1), 28-4, and 28-5 of the Recycling of Resources Act.

(2) On September 26, 200, the Plaintiff was granted permission for incorporation of the Plaintiff and authorization for establishment of a mutual aid association based on Article 32 of the Civil Act from the Defendant on September 26, 200. The Plaintiff submitted documents necessary for the Defendant to act on behalf of producers obligated to recycle, and became a mutual aid association upon obtaining authorization based on Article 27(4) of the Resource Recycling Act on December 18, 2003. (3) The Defendant’s corrective order against the Plaintiff was issued to the Plaintiff eight times from March 6, 2014 to October 21, 2014 on the basis of attached Form 28-4(1) of the Resource Recycling Act on the basis of the revocation of permission for establishment of a mutual aid association, and the Defendant notified the Plaintiff of the revocation of permission for establishment of a mutual aid association on May 27, 2014 in writing on the grounds that it did not comply with the Plaintiff’s permission for establishment of a mutual aid association and its employees on March 28, 2014.

2. Issues of the instant case

A. Whether there is a defect in violation of the Administrative Procedures Act such as violation of duty to present reasons

B. Whether there is a reason to dispose of the revocation of authorization of the Financial Cooperative

(1) The plaintiff was ordered to take corrective measures not less than three times a year

(2) Whether the illegality between the defect of the corrective order and the revocation of the authorization is succeeded

(3) Whether there is no corrective order or no grounds for invalidation

(4) Whether the Plaintiff took corrective measures

C. Whether there are grounds for disposition of cancellation of permission

(1) Whether the condition of establishment permission under Article 38 of the Civil Act is violated

(2) Whether the act constitutes “when an act detrimental to the public interest” under Article 38 of the Civil Act

(3) Whether the withdrawal right reservation or ex officio revocation is possible on the basis of the public interest needs.

D. Whether the revocation disposition of the authorization of a mutual aid association and the deviation and abuse of discretionary power

3. The judgment of this Court

A. Whether there is a defect in violation of the Administrative Procedures Act such as violation of the duty to present reasons [Defendant's assertion]

The defendant asserts that the grounds and grounds for revocation of permission for incorporation and revocation of authorization are very specific to the plaintiff through several corrective orders, prior notice, hearing procedures, etc. up to the disposition, and the plaintiff can be well aware of the grounds and grounds for the disposition, and there was no impediment to doing so to the administrative remedy procedures. Therefore, the defendant's disposition did not constitute an unlawful violation of the Administrative Procedures Act, such as violation of the duty to present reasons.

【Counterclaim by the Plaintiff】

The Plaintiff did not notify the Plaintiff of the fact that the cause of the disposition was attributable to the Plaintiff, and did not separately provide the grounds corresponding to the two dispositions, and did not specify the relevant Acts and subordinate statutes, so it is difficult to find out whether the Plaintiff’s act specifically constitutes grounds for disposition on the ground that the Plaintiff’s act constitutes grounds for disposition on the ground that the Plaintiff did not constitute grounds for disposition on the ground that the Defendant violated the Administrative Procedures Act, such as violating the duty of presentation

[Judgment]

(1) The following facts may be acknowledged in light of the overall purport of the arguments in evidence (A-2, A-26, 28, A29-1, 2, A-2, A-30, 31, 32, B-8, 12, 28, 29, and 39). The Defendant’s eight corrective orders against the Plaintiff and the measures taken are as follows.

A person shall be appointed.

As to the defendant's corrective order, the plaintiff reported some of the individual corrective measures to the defendant, clarified the plan for implementation, and suggested rebuttals that the others are unable to take corrective measures or are responsible for the occurrence of the problem to the defendant.

(C) On November 19, 2014, the Defendant: (a) was in violation of the Civil Act, the Ministry of Environment and the Korea Meteorological Administration’s regulations on the establishment and supervision of non-profit corporations under the jurisdiction of the Korea Meteorological Administration; (b) breached the Defendant’s conditions of permission for establishment and authorization of mutual aid associations by improper performance of the Defendant’s guidance and supervision; (c) lack of business performance ability to achieve the purpose of establishment; and (c) did not perform any act detrimental to the public interest; (d) did not follow the procedures of production and purchase contract for removal of waste mines, etc.; (e) did not arbitrarily determine recycling charges and subsidies; and (e) did not correct them even after receiving corrective orders more than three times; and (e) did not comply with the Defendant’s request for dismissal; and (e) did not comply with the Plaintiff’s duty to remove members from special meetings on the date of the hearing; and (e) did not cause any conflict between the Plaintiff’s recycling facility and its financial status due to the Plaintiff’s violation; and (e) presented that the Plaintiff’s recycling facility and its financial status.

(2) Article 23(1) of the Administrative Procedures Act provides that an administrative agency shall present the basis and reasons for a disposition. As can be seen, a law requiring a presentation of reason for an administrative disposition goes out to the effect that the administrative agency’s carefulness and rationality of the judgment is ensured, and at the same time the other party’s notification of the reason for the disposition is convenient for appeal. In the absence of such explanation, the revocation of the disposition itself cannot be exempted, and a determination shall be made in light of the nature and purpose of the individual statute ordering a presentation of reason. Therefore, in full view of the contents stated in the written administrative disposition and relevant statutes, and the whole process up to the relevant disposition, it can be sufficiently known that the party’s objection was made for any reason, and thus, if it is deemed that there was no particular hindrance to the administrative remedy procedure, it cannot be said that the disposition is unlawful (see Supreme Court Decision 2012Du12570, Sept. 4, 2014).

According to the above facts, the defendant specified the grounds for the disposition in the prior notice of November 19, 2014 (the notice of holding a hearing), and the plaintiff appeared on the date of the hearing and expressed his/her opinion on the grounds. In addition, the plaintiff received several corrective orders from the defendant even before receiving the notice, and most of the grounds for the disposition in December 30, 2014 were pointed out repeatedly due to specific reasons under the corrective order. In light of the plaintiff's response to the corrective order, the plaintiff was specifically aware of the reasons pointed out by the defendant, and the corrective order continued until two months prior to the cancellation of permission and the cancellation of authorization. Therefore, it is difficult to view that the plaintiff did not specifically affect the defendant's corrective order as unlawful on the grounds that the correction order was made on the grounds that it was based on any grounds and grounds for the cancellation of permission and the cancellation of authorization through the contents of the prior notice of November 19, 2014, and the hearing date of the hearing.

This part of the defendant's argument is justified.

B. Whether there is a reason to dispose of the revocation of authorization of the Financial Cooperative

(1) The Plaintiff received a corrective order at least three times in one year (the Defendant’s assertion)

The defendant asserts that the first number of corrective orders is not less than three times per year, not only a repeated corrective order for the same reason, but also a case where the first number of such corrective orders is not less than three times per year, regardless of the reason. The defendant argues that all of the plaintiff's eight corrective orders are an order for corrective measures under Article 28-4 (1) of the Resource Recycling Act, since the plaintiff must resolve the violation of the law or the articles of incorporation.

【Counterclaim by the Plaintiff】

On the premise that "not less than three times of corrective order" prescribed as the grounds for revocation of authorization is "not less than three times of corrective order on the same ground", the plaintiff's request to actively recover the abandoned light, etc. in relation to local governments is merely the defendant's response to securing the financial soundness of the plaintiff, and it is not a corrective order. The request to organize, reconstruct, and hold the meeting of the cost committee is merely a mere recommendation on the part which is not mandatory to the defendant, and it is not a corrective order for the same reason not less than three times.

[2] According to Article 14(1)(2) of the Act, the Plaintiff’s act of collecting more than 15(1)(2) of the Act provides for the producer’s liability recycling system (EPR) which imposes an obligation to recycle wastes on the manufacturers and manufacturers using specific packaging materials. According to Article 14(1)(2) of the Act, the Plaintiff’s act of collecting and recycling resources for more than 3 years after being subject to 14(2) of the Act. According to Article 16(1) of the Act, the Plaintiff’s act of collecting and recycling resources for more than 5(2) of the Act, and the Plaintiff’s act of collecting and recycling resources for more than 10(3) of the Act, and the Plaintiff’s act of collecting and recycling resources for more than 10(3) of the Act, and the Plaintiff’s act of collecting and recycling resources for more than 20(3) of the Act, the Plaintiff’s act of collecting and recycling resources for more than 15(2) of the Act.

(2) Whether the illegality between the defect of the corrective order and the revocation of the authorization is succeeded

【Defendant’s Claim】

The defendant asserts that the corrective order against the plaintiff is different from the revocation of the authorization and its purpose and effect, and as to the corrective order, which is a prior disposition, the litigation period is excessive, the plaintiff cannot dispute the validity of the revocation of authorization on the ground of defects of the corrective order.

[2] In light of the aforementioned evidence, the Defendant’s assertion that the authorization for the establishment of a mutual aid association under the Resource Development Act may be revoked on three occasions if the Defendant did not comply with the corrective order through the 6, 7, and 8th order against the Plaintiff, and the Plaintiff is not dissatisfied with the corrective order. In a case where two or more administrative dispositions continue to exist and their subsequent procedures constitute a series of procedures, the Plaintiff may assert the illegality of the prior corrective order as an illegal cause in a lawsuit seeking revocation of the authorization for the first and subsequent corrective order. However, even if the subsequent corrective measures are related to the prior corrective measures, it cannot be seen that the Plaintiff did not have an effect of the revocation of authorization for the first and subsequent corrective measures based on the 20th order for the reason that the defects of the prior corrective measures were grave and apparent, and thus, it cannot be seen that the first and subsequent corrective measures were not carried out for the purpose of the revocation of authorization for the first and subsequent corrective order for the purpose of the first and subsequent corrective order for the purpose of the revocation of authorization.

(3) Whether no corrective order has been issued or there has been grounds for invalidation [Plaintiff's assertion]

The Plaintiff asserts that the disposition for revocation of authorization is also unlawful as a matter of course on the grounds that the corrective order with respect to each of the following grounds is null and void. The Plaintiff’s concurrent office of the Plaintiff’s executive officers and employees is merely a case where the Defendant implicitly consented to the former or a temporary concurrent office due to unavoidable circumstances, and the prosecutor issued a non-prosecution disposition upon investigation with respect to suspicion of occupational breach of trust, embezzlement, etc. of the Plaintiff’s executive officers and employees. The prosecutor issued a non-prosecution disposition. In the Republic of Korea, the Defendant set the mandatory recycling rate of light light, etc. to be excessively high that the Defendant did not fit the reality, and the Recycling Business Co., Ltd. Co., Ltd., a recycling business operator affiliated with the Defendant (hereinafter referred to as “Co., Ltd.), which concluded an entrustment contract with the Plaintiff, was unable to secure excessive recycling charges, and thus, the Plaintiff becomes subject to excessive recycling charges. The Plaintiff’s duty to recover waste treatment, etc. belongs to the Defendant’s responsibility, and it is impossible for the Plaintiff to independently collect it from the local government’s.

(D) Although the Defendant ordered the establishment and holding of the cost committee to calculate contributions and subsidies, since the composition and operation of the cost committee belongs to the Plaintiff’s autonomous matters, the above order does not constitute a lawful corrective order, and even if the Plaintiff organized the cost calculation committee on the first hand at the Defendant’s request, it is not a legal ground for the Defendant to demand the re-organization of the cost committee as an issue.

[Dissenting of the Defendant]

In order for the plaintiff to secure financial soundness, the defendant can take measures to properly set expenses incurred in entrusting recycling and increase the cost of walking from the mandatory producers, and in order to perform the duty to recover waste light, each corrective order can be implemented, such as entering into an entrustment contract with the waste disposal business operator of P, etc. in addition to C, and otherwise, the plaintiff's assertion that the corrective order does not constitute a defect to the extent that the corrective order is to be null and void automatically because all of the illegal grounds alleged by the plaintiff are serious or unclear.

[Judgment]

(A) In full view of the overall purport of the pleadings, the following facts can be acknowledged in the evidence (A), 7, 23, 25, 9, 18, 22-1, 2, 3, 31).

1) Holding concurrent offices with specially related persons and executives and employees

A) The Plaintiff’s board of directors was composed of 7 June 3, 2014. Of them, the Plaintiff entered into a recycling business consignment contract with C and 14 years from January 2006 to February 202, 20, concluded a recycling business consignment contract with C, and paid expenses, etc. by entering into a contract for the maintenance of facilities (security services) with H and E, and paid commission fees upon entering into a sales consignment contract with H.

C) From among the officers of Plaintiffs, C, E, G, and H at the time of January 16, 2015, the Plaintiff and the specially related persons are as follows:

A person shall be appointed.

D) The Plaintiff’s articles of incorporation or operational regulations do not restrict the concurrent holding of office by executives or employees.

E) The “voluntary agreement on the recycling of producers, such as waste mines, etc., dated November 6, 2000” between the Plaintiff and six companies is an agreement with five manufacturers, such as waste mines, which is obligated to recycle waste mines, and the Plaintiff, representing Convention Enterprises, to establish and operate a nationwide system for the recovery and disposal of waste light, etc. The recycling business entity of C, etc. did not participate in the agreement and did not include the contents related to the concurrent holding of offices.

2) On August 8, 2014 and October 10, 2014, 33 companies among the Plaintiff’s members who did not hold an extraordinary general meeting requested the Plaintiff to convene an extraordinary general meeting. However, the Plaintiff did not convene an extraordinary general meeting.

(iii)the imposition, etc. of recycling dues;

A) The Plaintiff failed to achieve the mandatory recycling quantity allocated to members in 2012 and 2013, and the Korea Environment Corporation imposed the Plaintiff a recycling charge of KRW 270 million in 2012, and KRW 2.8 billion in 200 million in 2013.

B) Until before 2012, C was the sole waste metal treatment business entity, and P commenced two business entities from April 2, 2012 when it started recycling of waste minerals, etc., but the Plaintiff delegated recycling business to C alone and excluded P.

4) While the Plaintiff had collected and transported waste light, etc. from the original local government, the Plaintiff was paying KRW 10-20 per 10 to 10 per 1 Seoul Metropolitan Government and local governments in Seoul Metropolitan Area, but was promoting measures to completely abolish or reduce such subsidies since April 2014.

(v) the operation of the cost committee;

A) The Plaintiff did not hold a cost committee for the last three years (from 2011 to 2013) and determined subsidies and contributions through the board of directors.

B) around December 208, the Defendant: (a) established and distributed the “measures to improve the operation of the Mutual Aid Association” and had the Mutual Aid Association calculates the recycling cost based on the existing recycling standard cost; (b) revised the recycling cost by the board of directors based on the subsidy; (c) required to include one person related to the Korea Environment Corporation (Gu Environment and Resources Corporation) within 40%; and (d) on December 16, 2008, one person related to the Korea Environment and Resources Corporation (Gu Environment and Resources Corporation) to be included in the calculation method based on the subsidy. It is apparent that there is an illegality in the pertinent administrative disposition to be deemed null and void, and it is evident that there is no reason to believe that there is no illegality in the pertinent administrative disposition; and (b) it is evident that there is no room to apply the provision of the Act to the interpretation of the Act as to the defect in its purpose and function as a material part of the law; and (c) it is evident that there is no room to apply the provision of the Act as to the defect in the administrative disposition.

In addition, as seen earlier, the mutual aid association is in a public position to operate properly in order to protect the rights and interests of producers obligated to recycle, who are members, while meeting the purpose of the producers liability recycling system under the Resource Recycling Act, and thus, if the mutual aid association violates the purpose of establishment by improper operation in violation of the laws and regulations including the Resource Recycling Act and the articles of association, etc., the Defendant, as the competent authority, shall exercise the supervisory authority. Since Article 28-4(1) of the Resource Recycling Act also provides that the requirements for corrective order are "cases of violation of the Acts and subordinate statutes or the articles of association," even if the operation of the mutual aid association is not prohibited under the Acts and subordinate statutes or the articles of association,

C. According to the facts found above, the plaintiff's violation presented by the defendant as the basis of corrective order is ① concurrent office of executive officers, ③ long-term monopoly contract with C, request for convening an extraordinary general meeting of members, etc. ② aggravation of financial soundness, ③ aggravation of financial soundness, ③ lack of recovery obligation with local governments and local governments, ④ lack of cooperation and recovery system, ④ failure to calculate contributions and recycling subsidies through deliberation by the cost committee as to the illegality of each corrective measure.

1) In light of Articles 16 and 27 of the Resource Recycling Act, Articles of the Plaintiff’s articles of incorporation (hereinafter “the meeting must be convened at the request of at least 1/3 of the incumbent members”) and 31 (hereinafter “election and dismissal of an officer”) regarding the adequacy and transparency of operation, the Plaintiff’s act of trading with a specially related person and allowing the concurrent holding of an officer and failing to comply with the request for convening an extraordinary general meeting under the articles of incorporation is an act impeding the fair and appropriate operation of the Mutual Aid Association under the Resource Recycling Act, and it violates the statutes, articles of incorporation, etc., and thus, the Defendant’s corrective order as to each circumstance exists. Even if the Defendant approved the “voluntary agreement on recycling of manufacturers such as closed light, etc.” of the Plaintiff and six companies, it cannot be deemed that the Defendant impliedly permitted the Plaintiff’s concurrent holding of office. Moreover, the Plaintiff’s non-prosecution decision as of July 23, 2015 (A) of the Prosecutor’s Association President B’s non-prosecution order for corrective order after July 23, 2019.

2) In light of the purpose of Articles 27 and 16 of the Resource Recycling Act, the Plaintiff’s corrective order to secure financial soundness is obligated to maintain the level of finance necessary to perform the duty to recover and reuse by proxy the producers obligated to recycle and to protect their rights and interests. However, it cannot be readily concluded that the Korea Environment Corporation’s calculation of the mandatory recycling rate or the imposition of any excess of recycling charges on the Plaintiff was unjustly performed. However, the Plaintiff’s failure to fulfill the obligation to recycle waste, etc. is attributable to the Plaintiff’s exclusive entrustment only to C, and the Plaintiff is able to secure financial soundness by means of reducing the costs of subsidies, etc. paid to the recycling business entity or increasing the contributions collected from its members. As such, it is difficult to deem that the Plaintiff’s failure to meet the financial soundness of the Plaintiff Association or the establishment and implementation of a plan to secure financial soundness was impossible as the Plaintiff. Accordingly, the corrective order to secure financial soundness is invalid as it has no defects

3) According to Article 3 of the Act on the Improvement of Resources for Recycling of Waste, Etc., the Wastes Control Act, which is a special law for recycling of resources, provides that the Wastes Control Act shall apply only to matters not provided for in the Act on the Recycling of Resources for Recycling of Wastes.

Article 16(1) and (2), Article 18(2), and Article 28-2(1) of the Resource Recycling Act explicitly imposes obligations on producers obligated to recycle in addition to the existing mandatory recycling, and Article 13-3 of the Resource Recycling Act allows the head of a local government to establish a special account for the management of recyclable resources. The purpose of the Act is to enable producers obligated to recycle to preserve the waste collected by the local government and to establish and manage a separate special account for profits generated therefrom. Furthermore, Article 8(3) of the Guidelines on the separate collection of recyclable resources provides that “the head of a Si/Gun/Gu shall, notwithstanding the obligation to collect and recycle waste, transport waste to the Plaintiff from among the products and packing materials subject to mandatory recycling under Article 16 of the Act and Article 18 of the Enforcement Decree of the Act.” However, Article 16 of the Act provides that the head of a local government’s duty to collect and dispose of waste within the jurisdiction of a local government should not be considered as “the collection and disposal of waste generated by the local government.”

4) Pursuant to Article 29(1) of the Resource Recycling Act, Articles of Incorporation 40-2 of the Plaintiff’s Operational Rules, and Article 17(3) of the Plaintiff’s Operational Rules, such as that the Plaintiff did not hold a cost committee for the last three years (201 to 2013).

Since there was no operation, the defendant may issue a corrective order in relation thereto. Moreover, since the committee that reported that the plaintiff had formed a primary organization is contrary to the defendant's intent of the improvement plan in 2008, the defendant may also issue a corrective order for reorganization. Therefore, the corrective order with respect to the cost committee is lawful as it is based on the law.

(D) If so, it is difficult to view all of the Defendant’s corrective orders as having a significant and apparent defect that falls under the invalidation as a matter of course. Since each corrective order was not in dispute, the Plaintiff cannot claim the grounds for illegality of each corrective order regarding the revocation of authorization for establishment of a mutual aid association. The Plaintiff’s allegation in this part is without merit.

(4) Whether the Plaintiff performed a corrective measure [Defendant's assertion]

The defendant asserts that the defendant did not implement corrective measures such as ① disclosing that the defendant's corrective order was abstractly corrected or that the contract with C was difficult to correct. As a result, the contract with C was not resolved and the concurrent office of some executive officers was not resolved. ② The method of securing financial soundness was not prepared, ③ the waste-type mine is not actively recovered, ③ the recovery duty was not recovered, ③ the recovery duty was unilaterally asserted that the recovery duty was part of the local government, ④ the cost committee was not organized appropriately, and the cost committee was not convened and the cost committee was not held to calculate the charges.

【Counterclaim by the Plaintiff】

The plaintiff asserts that ① the concurrent office of executive officers was resolved, ② the best effort was made to reduce the contract period with C, ② the plan was presented to secure financial soundness, ③ the plan was carried out to cooperate with the local government in connection with the recovery of waste mine, etc., ④ the committee was actually organized, and accordingly, each corrective order was implemented.

[Judgment] In full view of evidence (A6, 18, 24, A27-1, 2, A28, B8, 10, 11, and 22-3), the following facts can be acknowledged.

1) Although the Plaintiff’s president B resigned from the intra-company director on March 10, 2014, D (Plaintiff director) and I (B) still serve as C’s director, and the Plaintiff did not prepare articles of incorporation, etc. that restrict concurrent offices.

2) The Plaintiff, as an attempt to reduce the contract period with respect to the cancellation of the long-term monopoly contract, proposed a reduction of contract period to C, but failed to conclude the revised contract as it did not reach an agreement.

3) Even though the Defendant demanded the convocation of an extraordinary general meeting by its members through the 7th and the 8th corrective order, the Plaintiff respondeded on November 5, 2014 to the effect that 33 member companies requesting the convocation of an extraordinary general meeting are refusing to convene the meeting.

4) After the fourth corrective order, the Plaintiff organized the cost calculation committee, unlike the Defendant’s measures for improvement in 2008, but did not include the person related to the Korea Environment Corporation, and related experts were also designated by the president of the Association. The Defendant ordered the reorganization of the cost committee through the fifth corrective order, and the Plaintiff’s board of directors decided to include the person related to the Korea Environment Corporation around August 6, 2014. However, despite the fact that the Defendant did not hold a committee among the 7 and 8 corrective orders, the Plaintiff did not hold the cost committee until the cancellation of the authorization to establish the Plaintiff’s Financial Cooperative. According to the above facts and the above facts, the Plaintiff failed to resolve the long-term monopoly contract with the officer’s concurrent office or related party, and ② the Plaintiff was required to abolish the subsidy already paid to the local government or to reduce charges due to the lack of the mandatory recycling quantity already imposed on the Plaintiff. ③ The Plaintiff did not actively dispute the Plaintiff’s duty to recover the waste, etc., and did not hold a corrective order for correction order for more than three times but did not prepare a corrective order.

This part of the defendant's argument is justified.

(4) Reorganization

Therefore, since the plaintiff falls under subparagraph 3 of Article 28-5 of the Resource Recycling Act, the defendant's revocation disposition against the plaintiff has the grounds for such disposition.

(1) Whether a case constitutes “a case in violation of the terms and conditions of establishment permission” under Article 38 of the Civil Code, [Defendant’s assertion]

The defendant asserts that there is a ground for disposition of disposition of cancellation of permission of incorporation because it falls under the condition of permission of establishment, and falls under the case where the plaintiff fails to perform the guidance and supervision of the Ministry of Environment prescribed by the Ministry of Environment, and the case where it is deemed that there is no capacity to perform the business to achieve the purpose of establishment.

【Counterclaim by the Plaintiff】

The plaintiff can not be viewed as a "requirements for the establishment permission" under Article 38 of the Civil Code, and the plaintiff can not be viewed as a "requirements for the establishment permission", even if it is a condition, the plaintiff's failure to perform the direction and supervision of the defendant or lack the plaintiff's ability to implement the business.

[Judgment] The following facts are acknowledged in light of the overall purport of the arguments in evidence (as evidence Nos. 2, 12, 13, and 22-1, 2, and 3)

1) When permitting the establishment of a corporation for the plaintiff, the defendant complies with the Resource Recycling Act, the Civil Act, the rules on the establishment and supervision of non-profit corporations under the jurisdiction of the Ministry of Environment, and the articles of incorporation, as the title of "

(1) The Ministry of Environment shall comply with the guidance and supervision of the Ministry of Environment. (1) and the term "business (profit-making, etc. in the name of a corporation)" shall be cancelled when it is deemed that the above conditions are violated or there is no possibility of undermining the public interest or that there is no capacity to implement the establishment purpose. (2) The term "(2)" shall be cancelled.

2) On May 27, 2014, the Defendant: (a) deemed that the president of the Association violated the relevant statutes and the articles of incorporation as shown in attached Form B and did not properly operate the Association; and (b) requested the Plaintiff to dismiss the president of the Association and the relevant employees based on Article 28-4(2) of the Resource Recycling Act.

3) On May 30, 2014, the Plaintiff opened a board of directors and posted “cases of dismissal of the president of the Association” as an agenda item, and subsequently rejected as 1, 5, and 1, 5 (the president of the Association).

4) On June 3, 2014, the Plaintiff reported to the Defendant that the dismissal agenda was rejected by the board of directors and that it was no longer necessary to refer the proposal to the general meeting for dismissal.

5) On August 8, 2014 and August 10, 31, 2014, the Plaintiff refused to convene an extraordinary general meeting by replying to the effect that the board of directors already rejected the request for convening an extraordinary general meeting on the agenda of dismissal, etc. of the president of the Association, but did not refer to the general meeting. Article 38 of the Civil Act provides that “when a corporation violates the terms and conditions of permission to establish a corporation, the term “when it has violated the conditions of permission to establish a corporation” as one of the grounds for revoking the establishment permission of a non-profit corporation. This provision provides that “In order to obtain the permission to establish a corporation from the competent authority, such conditions as required human resources and material facilities are not met after the establishment permission, but the revocation of the establishment permission of a corporation cannot be deemed as a sanction to extinguish its legal personality by dissolution of the corporation and ultimately, the competent authority fails to meet the conditions of permission to establish a corporation under Article 38 of the Civil Act (see Article 28 of the Civil Act).

Meanwhile, while the competent authority has a general supervisory authority over the affairs of a corporation under Article 37 of the Civil Act, the Civil Act does not have any basis as to whether the competent authority can issue an order for supervision pursuant to the need for supervision, and in light of the principle of administration under the Act that requires the legal basis or authorization (the principle of statutory reservation and the principle of the authority to issue an order for corrective measures in the individual laws such as Article 28-4 (1) and Article 28-4 (1) of the Resource Recycling Act) in order to conduct administrative activities, the competent authority may not issue an order for corrective measures against a non-profit corporation based on the general supervisory authority against a non-profit corporation unless otherwise provided for in the statutes. In addition, Article 38 of the Civil Act does not provide for the reason for revocation of the permission for establishment of a corporation. Therefore, even if the competent authority requests a non-profit corporation to issue any instruction based on the supervisory authority, interpreting that the permission for establishment of a corporation cannot be cancelled on

According to the above facts, the defendant appears to the purport of Article 38 of the Civil Act with the phrase "requirements for Permission for Incorporation of the plaintiff" in Paragraph (2) of "when it violates the above conditions of permission," but Paragraph (1) merely confirms the obligation to comply with Acts and subordinate statutes, articles of incorporation, readings, etc. to be originally observed by non-profit corporations. It is inappropriate in that all kinds of laws and regulations, guidance, and supervision are not sufficiently established, regardless of the legislative body or contents thereof, and it is not consistent with proportionality. In particular, in the case of guidance and supervision, it is unreasonable in that the competent authority can arbitrarily form reasons for cancellation of permission through guidance and supervision of the plaintiff. In addition, the defendant's ground for cancellation of permission for establishment of a non-profit corporation cannot be seen as a ground for cancellation of permission for establishment of a non-profit corporation, which is not stipulated in Article 38 of the Civil Act. The defendant's ground for cancellation of permission for establishment of a non-profit corporation cannot be seen as a ground for cancellation of permission for establishment of a non-profit corporation (see the above grounds for cancellation of permission for non-profit corporation).

(2) Whether an act detrimental to the public interest under Article 38 of the Civil Act was committed

【Defendant’s Claim】

The defendant asserts that since the plaintiff's failure to perform his obligations under the law and the articles of incorporation caused an environmental hazard by neglecting the waste mine, etc., and the plaintiff's members shared excessive contributions to cause financial damage and social conflicts, the plaintiff's act constitutes "when the plaintiff committed an act detrimental to the public interest" under Article 38 of the Civil Act.

【Counterclaim by the Plaintiff】

The plaintiff asserts that the part concerning the operation of the plaintiff corporation among the acts of the head of the plaintiff association who was investigated was subject to disposition of non-prosecution disposition, and that the plaintiff failed to achieve the mandatory recycling quantity, which did not cause environmental harm because light, etc. were left neglected, and rather, Q&A business established after the defendant's revocation of permission to establish the corporation did not have the ability to conduct the

[Judgment]

(A) "When a non-profit corporation commits an act detrimental to the public interest" under Article 38 of the Civil Act refers to a case where a director or any other institution of a corporation commits an act that is likely to infringe the public interest as a performance of his duties, or a general meeting of members makes such a resolution. In addition, the provisions of Article 38 of the Civil Act are to cope with a case where the purpose of the corporation at the time of its establishment was not prejudicial to the public interest, but it would be prejudicial to the public interest due to a later change in circumstances, and the revocation of the permission to establish a corporation must be automatically dissolved (Article 77(1) of the Civil Act). In order to constitute "an act detrimental to the public interest" under Article 38 of the Civil Act, the purpose or existence of the corporation must be deemed to harm the public interest, or the act of the corporation concerned must be deemed to violate the public interest directly and specifically. The revocation of the permission to establish the corporation should be decided by taking into account the contents of the purpose, mode of the act and degree of illegality, degree and circumstances of infringement (see, 2013).

B. According to the facts found earlier and evidence (A23), the president of the Plaintiff association may not be deemed to have committed an act that could infringe the public interest or a general meeting of the Plaintiff’s directors or other institutions or members of the Plaintiff’s members, or made such a resolution, on the grounds that all the investigation was conducted on suspicion of the Plaintiff’s operation. If the Plaintiff failed to achieve the mandatory recycling quantity of closed mine deposits, etc., the Defendant may impose recycling dues under the Resource Recycling Act and take sanctions on the Plaintiff. If the Plaintiff failed to properly operate the mandatory recycling quantity, the Defendant may take corrective measures against the Plaintiff, such as corrective measures and request for removal of officers pursuant to the Act on Resource Recycling. In fact, the Plaintiff’s order to cancel the establishment of a non-profit corporation for the same reason cannot be deemed as a means of sanctions. Furthermore, since the Plaintiff’s assertion that the Plaintiff did not act as a mutual aid association, it is difficult to view that the damage on property could not be recovered, environmental or social conflicts, rather than an issue arising from the Plaintiff’s act of a juristic person, and thus, it cannot be deemed that the Plaintiff’s act violated the public interest.

(3) Whether an ex officio revocation is possible due to the reservation of the right of withdrawal or a serious public interest necessity (the defendant's assertion)

The defendant asserts that the conditions of permission for incorporation against the plaintiff are as follows: where the plaintiff did not perform the guidance and supervision as a reservation of right to withdrawal, or where it is deemed that there is no capacity to perform the business to achieve the purpose of establishment, the plaintiff can withdraw the permission for incorporation, or the plaintiff violated the public interest, and thus the right to ex officio taking action against the plaintiff's act of administrative due to the necessity of important public interest has occurred.

【Counterclaim by the Plaintiff】

The plaintiff argues that the cancellation of the permission for establishment of a non-profit corporation is limited to Article 38 of the Civil Code, and there is no separate provision that can attach conditions at the time of the permission for establishment, and that the grounds and reasons for the cancellation of the beneficial administrative act should be clearly restricted by the law, and that it can be imposed at will through additional clauses, it is against the rule of law, and that it is difficult to recognize its validity because the "in the case of violation of guidance and supervision" among the defendant's subordinate officials is not clear.

[1] The purpose of Article 32 of the Civil Act to obtain permission from the competent authority for the establishment of a non-profit corporation is to grant permission for the establishment of a corporation only when the pertinent administrative authority, which has jurisdiction over a non-profit association or foundation, has determined that it is worth granting permission for the establishment of a corporation in the aspect of carrying out social activities actively for non-profit purposes with respect to the pertinent non-profit association or foundation. Moreover, there is no specific statutory standard for permission. Therefore, whether to grant permission for the establishment of a non-profit corporation under the current Act and subordinate statutes can not be deemed to be at the broad discretion of the competent authority, and the determination of permission for establishment of a competent authority shall be deemed to be illegal only when it is recognized that there is deviation or abuse of the discretionary authority, such as without the basis of fact, or when it is recognized that there is a manifest lack of validity under the generally accepted social norms. Therefore, in examining the legitimacy of a non-profit corporation's establishment permission

Unless there exist special circumstances, such non-permission disposition should be deemed unlawful, barring special circumstances. On the other hand, Article 38 of the Civil Act explicitly provides for the requirements for cancellation of permission for establishment and the form thereof by stipulating that permission may be cancelled if a juristic person conducts a business other than its original purpose or commits an act detrimental to the public interest. In light of the substance of the provision, it is interpreted that the competent authority’s broad discretion, such as permission for establishment, is not recognized in the case of cancellation of permission for establishment of a non-profit juristic person. In general, if the Act on the Acts and subordinate statutes on the acts of an administrative agency with a certain legal effect specifically provides for the same effect, it is reasonable to interpret that cancellation of permission for establishment of a non-profit juristic person should be based on the requirement, procedure, and form prescribed by the Act on the Establishment of Public Interest and thus, it should not be subject to the requirement for cancellation of permission for establishment of a non-profit juristic person under the Act on the Establishment of Public Interest and thus, it should not be subject to the strict interpretation of the Act on the Establishment of a non-profit juristic person.

D. Whether the revocation disposition of the authorization of a mutual aid association and the deviation and abuse of discretionary power

【Plaintiff’s Claim】

The plaintiff asserts that the contract with C has already been terminated, the term of office of the president B was expired on February 26, 2014, and all of the non-prosecutions (not suspected) shall be subject to the disposition of default on duty other than minor matters concerning the suspicion of occupational breach of trust against B, etc., and since multiple cooperatives are not prohibited under the current law and new mutual-aid associations are unable to carry out recycling business because they are not equipped with recycling facilities, it will contribute to the members of the association and the national finance. Therefore, in light of these circumstances, the defendant's disposition of revocation on authorization against the plaintiff is unlawful.

[Dissenting of the Defendant]

The defendant asserts that since the degree of infringement of public interest caused by the plaintiff's refusal to comply with the corrective order is serious, the revocation disposition against the plaintiff cannot be viewed as a deviation from the scope of discretion or an abuse of discretionary power.

[Judgment]

(1) The following facts can be acknowledged in full view of the overall purport of the arguments in evidence (A), A, 22, 23, 14, 21, 23, and 27). At the time of the revocation of the permission for establishment, the investigation of B was conducted due to the suspicion of occupational breach of trust in relation to the Plaintiff at the time of the revocation of the permission for establishment.

2) Thereafter, on July 23, 2015, B was indicted on suspicion of an offense that embezzled funds from various corporations including the Plaintiff in the manner of having the Plaintiff make payment of benefits at a higher level than the actual amount under the name of employees, and then, he/she was charged with a non-prosecution disposition due to lack of evidence with respect to the remaining suspicion. Damage to members or members was inflicted.

1) On August 18, 2014, R, S, and T, a member of the Plaintiff, submitted to the police station in Suwon-gu, Suwon-gu, the Suwon-gu, Seoul-gu, which was the Plaintiff’s member, a statement of the fact that the Plaintiff’s operation would cause damage to the Plaintiff’s union members, and that the Plaintiff would have suffered more damage than KRW 2.9 billion due to the imposition of recycling dues and that the Plaintiff would request strict investigations.

2) As of January 28, 2015, 26 companies from among the Plaintiff’s association members (in the amount of 93.3% withdrawn from the Plaintiff association on the grounds of non-Transparency in the operation of the association. Establishment of a multi-level mutual aid association

1) On January 30, 2015, Q, an incorporated association, obtained permission for establishment of a non-profit corporation and authorization for establishment of a mutual aid association from the Defendant.

2) Most of the manufacturers and importers of light light lights who left from the Plaintiff Cooperative were admitted to the new mutual aid association.

(2) In light of the form and content of subparagraph 3 of Article 28-5 of the Resource Recycling Act, the revocation of the authorization of a mutual aid association based on the relevant provision shall be granted discretion to the agency as to whether the disposition

In a discretionary act, an administrative agency’s punitive administrative disposition as an exercise of discretion with respect to matters entrusted to its discretion is limited to cases where it exceeds the scope or limit of the discretion recognized by law, or where it is deemed that it abused its discretion, and only such cases where it is deemed that the administrative agency abused its discretion, the court may revoke the administrative disposition (Article 27 of the Administrative Litigation Act). Since the administrative agency’s disciplinary disposition as an exercise of discretion cannot be conducted by its original person, the administrative agency’s disciplinary disposition as an exercise of discretion can not be conducted by its original person, depending on a specific case, only when it is deemed that the content and nature of the facts underlying the cause of the disciplinary disposition, the purpose to achieve the disciplinary disposition by the disciplinary disposition, the circumstances surrounding the disposition, and the criteria for the disciplinary disposition, etc., are considered to be objectively and clearly unfair in light of social norms, such a disciplinary disposition is unlawful

According to the above facts and the above facts, the Plaintiff is unable to properly perform the mandatory recycling quantity to the extent that the Plaintiff should bear excessive dues. The Plaintiff’s financial situation significantly deteriorated due to accumulation of dues, and the Plaintiff has been engaged mainly in transactions with companies and their relatives with the president of the Association, so it is not clear whether to properly carry out recycling business if the exclusion is made. Moreover, even if the recycling business capacity of the new mutual aid association is somewhat insufficient, it is a matter between a separate mutual aid association and the Defendant, and even if the new mutual aid association lacks the capacity of recycling business, it cannot be seen as a situation that should consider whether the Defendant’s discretionary power with regard to the revocation of the authorization for the Plaintiff has been properly exercised. In addition, the purpose of the Defendant’s attempt to achieve through the revocation of the authorization is to facilitate the recovery and recycling of recycled products and protect the rights and interests of producers, such as waste mines, etc. Accordingly, it cannot be readily concluded that the Plaintiff’s private interest achieved due to the revocation of the authorization for the authorization is considerably inappropriate or considerably inappropriate in light of social norms.

4. Conclusion

Therefore, the Defendant’s disposition to revoke the authorization of a recycling business mutual aid association against the Plaintiff on December 30, 2014 is lawful. However, the Defendant’s disposition to revoke the authorization of a recycling business mutual aid association on December 30, 2014 is unlawful. The part concerning the revocation of the authorization of a recycling business mutual aid association on December 30, 2014 is justifiable among the judgment of the first instance, and the conclusion is just, and the part concerning the revocation of the authorization of a incorporation among the judgment of the first instance, which concluded otherwise, is unfair, so it is modified as per Disposition 1 of the judgment of the first instance, and one half of the total litigation costs