[1] In a case where an administrative agency imposes a duty on a party or imposes a limitation on his rights and interests, if prior notice is given to the party or the opportunity to present opinions is not given to the party, whether such disposition is unlawful (affirmative with qualification)

[2] The case holding that in case where a petition against a disposition of suspension of indictment is closed by a branch office, it does not constitute an exception to prior notice under Article 13 subparagraph 3 of the Enforcement Decree of the Administrative Procedures Act

[1] Articles 21 and 22 of the Administrative Procedures Act / [2] Articles 21 and 22 of the Administrative Procedures Act, Article 13 subparagraph 3 of the Enforcement Decree of the Administrative Procedures Act

[1] Supreme Court Decision 99Du5870 delivered on November 14, 2000 (Gong2001Sang, 56) Supreme Court Decision 2000Du337 delivered on April 13, 2001 (Gong2001Sang, 1143)

Plaintiff (Attorney Choi Jae-ho, Counsel for the plaintiff-appellant)

The Minister of Health and Welfare

Seoul High Court Decision 2001Nu15049 delivered on July 11, 2002

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

We examine the grounds of appeal.

According to Articles 21(1) and (4) and 22(1) through (4) of the Administrative Procedures Act, where an administrative agency imposes obligations on the parties or imposes restrictions on their rights and interests, it shall notify the parties concerned of the fact that the grounds for such dispositions and the contents of such dispositions and the legal grounds therefor, the submission of their opinions, and the processing methods when no opinion is presented. In cases where other Acts and subordinate statutes stipulate that a hearing shall be held or a public hearing shall be held, the parties concerned shall be given an opportunity to present their opinions. However, in cases where a reasonable ground exists to deem that hearing is considerably difficult or clearly unnecessary due to the nature of the dispositions in question, the administrative agency shall not give a prior notice or hear their opinions. Thus, in rendering infringing administrative dispositions, the administrative agency shall not be exempt from revocation due to its illegality unless such prior notice is given or an opportunity to present their opinions is given (see Supreme Court Decision 9Du570, Nov. 14, 200).

According to the reasoning of the judgment of the court below and the judgment of the court of first instance as cited by the court below, the defendant, on August 31, 1999, notified the plaintiff on December 15, 199 that the suspension of indictment is imposed against the plaintiff within the Daegu District Prosecutors' Office, because the plaintiff was suspected of preparing and delivering a false medical certificate, so the suspension of indictment is imposed on the plaintiff. On January 14, 200, and notified the plaintiff of his opinion or submission in writing to the Ministry of Health and Welfare by not later than January 14, 200. However, when the above prior notice of disposition was issued, the plaintiff did not request the plaintiff to reconsider the suspension of indictment against the plaintiff because it did not go through the above prior notice of opinion submission. Accordingly, the court below determined that the defendant's prior notice of this case was not in violation of the law by giving the plaintiff 1 an opportunity to present his opinion, or by providing the plaintiff 2 with an opportunity to present his opinion to the plaintiff on March 19, 2001.

In light of the above legal principles and the records, we affirm the above recognition and judgment of the court below, and there is no error of law by misunderstanding facts or misunderstanding the legal principles as to the hearing procedures, as otherwise alleged in the ground of appeal (the plaintiff's suspension of indictment was ordered, and the plaintiff's appeal against it was completed by public inspection at the Ansandong Branch Office, and it cannot be viewed that the case constitutes "the case where it is judged that the opinion of the court is unnecessary because it objectively proves that the facts constituting the premise of the disposition by the court's judgment, etc. under Article 13 subparagraph 3 of the Enforcement Decree of the Administrative Procedure Act, etc.

Therefore, the appeal is dismissed, and the 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 Shin Shin-chul (Presiding Justice)