(영문) 창원지방법원 2020.4.23. 선고 2019구합54038 판결

On August 9, 2019, the Defendant issued a license for the electricity generation business with respect to a limited liability company B, and the license for the electricity generation business with respect to a limited liability company C on October 10, 2019, respectively, shall be revoked.

Reasons

1. Details of the disposition, etc.;

(a) Commencement of voluntary auction for solar power facilities, etc.;

1) D Co., Ltd. (hereinafter referred to as “D”) obtained a license for the electric generation business on February 18, 2008, Gohap-gun E 1) and operated solar power generation business since that time (hereinafter referred to as “each of the instant licenses,” and “the instant electric generation business”).

2) After the application of a mortgagee, the voluntary auction procedure was commenced on December 26, 2016 with respect to the above land and solar power infrastructure (hereinafter collectively referred to as the “business facility of this case”) upon the application of the mortgagee (the Changwon District Court Branch Branch SupportF).

(b) Conclusion of a contract for transferring the power generation license;

1) On November 22, 2017, the Plaintiff concluded a contract for the transfer of the power generation business license with the content that the instant license is to be transferred from D.

2) After entering into the above transfer contract, the Plaintiff applied for authorization for the acquisition of the electricity business, and the Gyeongnam Do governor approved the acquisition of the said business pursuant to Article 10 of the Electric Utility Act on November 29, 2017, and issued a license for the electricity generation business to the Plaintiff.

3) D was deemed dissolved under Article 520-2 of the Commercial Act on December 11, 2017.

1) B limited liability companies (hereinafter “instant asset securitization company”) purchased the instant business facilities at the above auction procedure on 2018, 10, and 1.

2) As amended by Act No. 16364, Apr. 23, 2019 (amended by Act No. 16364, Jul. 24, 2019), the provisions of Articles 10-2 and 11(1)5 were newly established as follows.

(1) Where a person who has taken over all business facilities of an operator of the electric utility business in accordance with any of the following procedures intends to operate the electric utility business, he/she shall report to the Minister of Trade, Industry and Energy, as prescribed by Ordinance of the Ministry of Trade, Industry and Energy:

3) On August 6, 2019, the instant asset securitization company reported the acquisition of the instant business facilities to the Minister of Trade, Industry and Energy pursuant to Article 10-2 of the Electric Utility Act. The Minister of Trade, Industry and Energy accepted the report on August 7, 2019, and requested the Defendant to conduct follow-up affairs, such as the issuance of a license for the electric generation business following the acceptance of the report. The Defendant issued a license for the electric generation business to the instant asset securitization company on August 9, 2019 (hereinafter referred to as “permission 1”).

(d) Transfer of electricity generation business;

1) On September 24, 2019, the instant asset securitization company transferred to C Co., Ltd. (hereinafter “C”) the entire electricity generation business of this case including the time room for the instant business.

2) Upon delegation of authority from the Minister of Trade, Industry and Energy, the Defendant approved the acquisition of the electric utility as above by C on October 11, 2019. The Defendant issued a license for the electric utility generation business to C on the same day (hereinafter referred to as “the second license”).

[Ground of recognition] Facts without dispute, Gap 3 through 8, Gap 10, 13, 14, 15, 20, Eul 1, 3, and the whole purport of the pleading

2. Determination on this safety defense

A. Defendant’s assertion

As to the plaintiff's claim seeking revocation on the ground that permission Nos. 1 and 2 is illegal, the defendant asserts that the disposition of this case is merely a notification and does not constitute a disposition subject to appeal litigation, and that there is no standing to sue to seek revocation

B. Relevant statutes

It is as shown in the attached Form.

C. Regarding the eligibility for an appeal litigation

1) Relevant legal principles

An administrative disposition, which is the object of an appeal litigation, refers to an act of an administrative agency’s public law, which is an act of ordering the establishment of rights or the burden of obligations under Acts and subordinate statutes with respect to a specific matter, or causing other legal effects, and an act that does not directly cause legal changes in the legal status of the other party or other related persons, is not an administrative disposition that is the object of an appeal litigation (see, e.g., Supreme Court Decision 98Du18435, Oct. 22, 199).

Meanwhile, whether a certain act of an administrative agency can be the subject of an appeal cannot be determined abstractly and generally. In a specific case, an administrative disposition is an enforcement of law with regard to specific facts conducted by an administrative agency as a public authority, which directly affects the rights and obligations of the people. In mind, the decision should be made individually by taking into account the content and purport of the relevant Act and subordinate statutes, the subject, content, form, and procedure of the act, the substantial relation between the act and the disadvantage suffered by interested parties such as the other party, and the attitude of the administrative agency and interested parties related to the pertinent act, etc. (see, e.g., Supreme Court en banc Decision 2008Du167, Nov. 18, 2010).

2) Determination

According to the Electric Utility Act, where a person who has acquired all business facilities of an operator of the electric utility in an auction procedure under the Civil Execution Act intends to operate the electric utility, he/she shall report to the Minister of Trade, Industry and Energy (Article 10-2 (1)), a person who has accepted such report shall succeed to the status of the operator of the electric utility business, and in such cases, the permission granted to the previous operator of the electric utility shall lose its effect (Article 11 (1) 5), and a person who intends to acquire all or part of the electric utility business by transfer shall obtain authorization from the Minister of Trade, Industry and Energy (Article 10 (1) 1), and a person who

The facts that the asset securitization company of this case acquired all of the business facilities of this case during the voluntary auction procedure and reported to the Minister of Trade, Industry and Energy, and that C acquired all power generation business including the business facilities of this case from the asset securitization company of this case, and obtained authorization from the defendant to whom authority was delegated by the Minister of Trade, Industry and Energy, the Minister of Trade, Industry and Energy. Accordingly, the asset securitization company of this case and C succeeded to the status of D operator including the electric business permission without any separate disposition pursuant to the above law

If so, permission 1 and 2 is merely an act of notifying or factually notifying after confirming the rights and obligations related to the permission of the electric utility business, which is determined by law, as seen above. It cannot be viewed as an act of directly affecting the rights and obligations of the people as a law enforcement with regard to specific facts.

Ultimately, permission 1 and 2 does not fall under a disposition, etc. which is subject to appeal litigation. This part of the defendant's assertion is reasonable.

D. Regarding standing to sue

Even a third party, who is not the direct counter-party to an administrative disposition, is entitled to a decision of propriety by filing an administrative litigation seeking the revocation of the administrative disposition, where the legal interests protected by law have been infringed. The term “legal interests” refers to the individual, direct, and specific interests protected by the relevant laws and regulations and relevant laws and regulations, and does not include either indirect or factual or economic interests (see, e.g., Supreme Court Decision 2018Du47189, Aug. 30, 2019).

The plaintiff asserts that the legal interest protected by the disposition of this case was infringed on the premise that the plaintiff lawfully acquired the permission of this case from D and possessed it.

However, there is no effect that an electricity business operator transfers only the right to permit the electricity business separately from the business facility (see Supreme Court Decision 2013Do81, Dec. 24, 2014). The Plaintiff’s acquisition of the right to permit the instant case has no validity. Therefore, the Plaintiff’s aforementioned assertion on a different premise is without merit, and there is no evidence suggesting that the Plaintiff’s legal interest was infringed upon by the first and second permission.

This part of the defendant's assertion that standing to sue is not acceptable is well-grounded.

3. Conclusion

The permission Nos. 1 and 2 does not fall under a disposition, etc. subject to appeal litigation, and the plaintiff does not have the standing to sue to seek revocation thereof. Thus, the lawsuit of this case is unlawful and dismissed

Judges

Judge Spool, Judge Spool

Judges Gu Superintendent-mo

Judges Lee Byung-il

Note tin

1) On April 19, 201, the above land was subject to registration conversion with a square of 49,476m of G forest Gancheon-gun, Chungcheongnamcheon-gun on April 19, 201, and the above forest was divided into six parcels, including a square of 8,110m of G forest, on August 16, 2017.