[1] Whether the revocation of a license pursuant to Article 30 subparagraph 1 through 4 of the former Control of Firearms, Swords, Explosives, etc. Act is a discretionary act (negative)

[2] The scope of application of Article 30 subparagraph 5 of the former Guns, Swords, Explosives, etc. Control Act

[1] According to Article 30 subparag. 3, Article 29(1)4, and Article 13(1)3 of the former Control of Firearms, Swords, Explosives, etc. Act (amended by Act No. 4989 of Dec. 6, 1995), where a person who obtained a license for a person in charge of control and security becomes disqualified for a person in charge of control and security by being sentenced to a fine or a heavier punishment in violation of the same Act, the licensing authority should revoke the license. In such a case, it is obvious that the licensing authority has no discretion to choose whether to revoke the license, and therefore, there is no room to deem that the revocation disposition of the license for a person in charge of control and security based on the violation of the above Act is deviating from the scope of discretion.

[2] Article 30 subparag. 5 of the former Guns, Swords, Explosives Control Act provides that when a person dies or causes an accident, such as explosion, by intention or gross negligence in handling explosives, the license may be revoked or the validity of the license may be suspended for a fixed period not exceeding six months. This provision applies to cases where a person fails to be sentenced to a fine or heavier punishment due to a violation of Article 30 subparag. 3, Article 29(1)4, or Article 13(1)3 of the same Act.

[1] Articles 30, 29 (1) 4, and 13 (1) 3 of the former Control of Firearms, Swords, Explosives, etc. Act (amended by Act No. 4989 of Dec. 6, 1995), Article 27 of the Administrative Litigation Act / [2] Article 30 subparagraph 5 of the former Control of Firearms, Swords, Explosives, etc. Act (amended by Act No. 4989 of Dec. 6, 1995)

[1] Supreme Court Decision 92Nu19026 delivered on June 8, 1993 (Gong1993Ha, 2030) Supreme Court Decision 94Nu10160 delivered on December 22, 1994 (Gong1995Sang, 687)

Plaintiff (Attorney Noh Jeong-soo et al., Counsel for plaintiff-appellant)

Police Agency of Jeonnam-do

Gwangju High Court Decision 95Gu2653 delivered on December 1, 1995

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. According to Article 30 subparag. 3, Article 29(1)4, and Article 13(1)3 of the Control of Firearms, Swords, Explosives, etc. Act (amended by Act No. 4989, Dec. 6, 1995; hereinafter the same shall apply), the licensing authority should revoke the license in a case where a person who has obtained a license for a person in charge of powders control and security becomes disqualified for a person who has been sentenced to a fine or more severe punishment in violation of the provisions of the Guns Act. In such a case, it is obvious in the relevant law that the licensing authority has no discretion to choose whether to revoke the license, and therefore, there is no room to deem that the revocation disposition of the license for a person in charge of powders control and security has deviates from the scope of discretion (see Supreme Court Decisions 92Nu19026, Jun. 8, 1993; 94Nu10160, Dec. 22, 1994, etc.).

According to the facts duly established by the court below, after obtaining a license for the first-class person in charge of powders control and security from the defendant on September 29, 1989, the plaintiff was issued a summary order of KRW 1,00,000, which became final and conclusive as it is, on the ground that the plaintiff violated Article 72 subparagraph 6 of the Guns Act and Article 18 (4) of the Guns Act, and in such a case, the court below affirmed the judgment below to the purport that, around 13:40 of Apr. 15, 1995, when the plaintiff worked at the construction site of the first-class national highway located in the Yegjin-gu Seoul Metropolitan City National Highway Corporation located in the construction site of the Yeakjin-gu Seoul Metropolitan City National Highway Corporation, and there was an accident that damaged the amount equivalent to KRW 2,373,300 by the market price of the Doel Line owned by the non-party Korea Electric Corporation (the first-class person in charge of powders control and security.

In addition, as long as the judgment of the court below that the cancellation of the license of this case cannot be seen as a discretionary act is justifiable, the decision of the court below additionally on the premise that the above cancellation of license is a discretionary act does not affect the conclusion of the judgment, and the theory of the lawsuit on the part of the judgment cannot be accepted without the need to examine the legitimacy thereof, and the theory of lawsuit that Articles 29 and 13 of the Guns Act apply only to a new licencer is merely an attack on the judgment of the court below, and it cannot

Therefore, the judgment of the court below cannot be deemed to have erred by misapprehending the legal principles as to abuse of discretionary power or application of statutes, such as the theory of lawsuit. Therefore, all arguments pointing this out are without merit.

2. In light of the fact that the Guns Act aims to contribute to maintaining public stability by preventing in advance the risks and accidents caused by the use, handling, etc. of guns, explosives, etc. (Article 1), even if a person who was sentenced to a fine or heavier punishment in violation of the Guns Act prescribes that he/she is disqualified under the Guns Act after he/she was disqualified from a license under the Guns Act, and if he/she became disqualified under the Guns Act, it cannot be said that it is improper to have him/her cancel the license when he/she becomes disqualified under the Guns Act.

In addition, Article 30 subparag. 5 of the Guns Act provides that when a person dies or causes an accident, such as explosion, by intention or gross negligence in handling powders, the license may be revoked or the validity of the license may be suspended for a fixed period not exceeding six months. It is reasonable to deem that Article 30 subparag. 3, Article 29(1)4, and Article 13(1)3 of the Guns Act does not apply to cases where a person does not fall under Article 30 subparag. 3, Article 29(1)4, and Article 13(1)3 of the Guns Act

In this regard, the court below's decision that Article 30 (5) of the Guns Act shall not be deemed to violate the principle of proportionality as long as the provision of Article 30 (3) of the Guns Act shall be deemed to be a preliminary and supplementary provision in preparation for the cases where the provision of subparagraph 3 of the Guns Act shall not apply. It is reasonable that the court below's decision that Article 30 (1) of the Guns Act shall not be deemed to be a violation of the principle of proportionality, and that the provision of the Guns Act shall not be interpreted differently solely on the ground that there may arise a harsh result in a case where a person was sentenced to a fine or a heavier punishment in violation of the provisions of the Guns Act and thus,

3. Examining the reasoning of the judgment below in light of the records, the court below is just in holding that the defendant's notification of the disposition in this case to the plaintiff and stated "the revocation of the license (the date of August 8, 2095)" in the notification as the content of the disposition in question is merely the fact that the person for whom one year has not passed since the revocation of the license in accordance with Article 30 of the Guns Act stated the purport of Article 29 (1) 3 of the Guns Act that he cannot obtain a license from the person in charge of powders control and security, and there is no violation of law such as the theory of lawsuit. We do not agree with the argument.

4. We hold that the disposition of this case is illegal in violation of the principle of trust protection, and that the judgment of the court below is not only an attack on the grounds that the decision was not asserted in the court below, but also there are no materials to acknowledge that the defendant was a public opinion statement that is the subject of trust to the plaintiff in the record,

5. Therefore, the appeal is dismissed, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Yong-sik (Presiding Justice)