Sang-119 et al.

Future Commercial Group Co., Ltd. (Law Firm Western, Attorney Kim Sejong-jin, Counsel for the defendant-appellant)

The Seoul Special Metropolitan City Mayor (Attorney Lee Jae-soo, Counsel for defendant)

April 29, 2016

Seoul Administrative Court Decision 2015Guhap51521 decided May 29, 2015

All of the appeals filed by the plaintiff, future mutual aid 119 and the defendant are dismissed.

The costs of appeal between the plaintiff, future aid19 and the defendant are assessed against the plaintiff, future aid19, and the costs of appeal between the remaining plaintiffs and the defendant, respectively.

1. Purport of claim

The defendant's decision that the registration of each of the plaintiffs was revoked on October 22, 2014.

2. Purport of appeal

A. Future Trade Group 119

Of the judgment of the court of first instance, the part of the plaintiff company future aid19 (hereinafter referred to as "the plaintiff company") shall be revoked, and the defendant shall revoke the registration revocation disposition against the plaintiff company future aid119 on October 22, 2014.

B. The defendant: the plaintiff's trade union member, the 119 future of the dispute resolution committee, and the bankruptcy resolution committee and the bankruptcy resolution committee, and the Dokdo bankruptcy resolution committee and the bankruptcy resolution committee, respectively.

The judgment of the first instance between the above plaintiffs and the defendant is revoked, and all of the above plaintiffs' claims are dismissed.

1. Details of the disposition;

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

B. A mutual aid association (hereinafter “mutual aid association”) terminated a mutual aid agreement with Plaintiff 1) on September 5, 2014 on the grounds that the mutual aid agreement with Plaintiff 1) would be deducted due to the mutual aid premium premium and security premium unpaid, etc., and notified the Defendant on the same day on the same day.

C. Accordingly, on October 22, 2014, the Defendant revoked the registration of the prepaid installment business operator, respectively, on the ground that Nonparty 1, who was a controlling shareholder at the time of the cancellation of the registration of the development of the CM development project, is an executive officer, on the ground that the registration of the Plaintiff 1 was terminated based on the mutual aid agreement under Article 40 (2) 3 of the Installment Transactions Act, with respect to the Plaintiff 1 and the KCA, the KCA and the KCA and the KCA and the KCA and the KCA, the KCA and the KCA and the KCA and the KCA and the KCA, and the KCA and the KCA and the KCA and the KCA and the KCA and the KCA and the KCA and the KCA and the KCA and the KCA and the KCA shall be revoked in order (hereinafter “Plaintiff 1 and 4” to the Plaintiff 1 through 4, respectively, and the registration revocation of the registration against the Plaintiff 5 et al.

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 the appointment and retirement of Nonparty 1, the representative of Plaintiff 1-A-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-S-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-S

[Ground of recognition] Facts without dispute, entry in 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”) does not mean all the cases where there was a ground for disqualification in the past, but it means only the case where it falls under the said ground for disqualification at the time of the Defendant’s disposition. However, since Nonparty 1 was not an officer of Plaintiff 1 or 4 at the time of the instant first disposition, the instant legal provision’s first 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

In light of the following circumstances, it is reasonable to view that the term “cases falling under the grounds for disqualification as referred to in the subparagraphs of Article 20” referred to in the legal provision of this case refers to cases falling under the grounds for disqualification as at the time of the disposition by the administrative agency.

A) Article 39(1) of the Installment Transactions Act provides, “The Fair Trade Commission may order the relevant prepaid installment business operator to take corrective measures if the prepaid installment business operator commits an act falling under Article 20,” and if the registration of the prepaid installment business operator is revoked immediately if the grounds for disqualification falling under Article 20, such as the Defendant’s assertion, occur, and if the registration of the prepaid installment business operator is revoked immediately, an unreasonable result under Article 39(1) of the Installment Transactions Act occurs. Rather, if the grounds for disqualification arise, the Defendant may order the correction thereof pursuant to Article 39(1) of the Installment Transactions Act, and even if the prepaid installment business operator fails to comply with such order by the time of the disposition, the registration must be revoked in accordance with Article 40(2)2 of the Installment Transactions Act.

B) During the registration of Article 20 of the Installment Transactions Act, the term “company where three years have not elapsed since a person who was sentenced to a suspended sentence due to a violation of this Act and was sentenced to a fine due to a violation of this Act” or “company where five years have not elapsed since the cancellation of the registration” and “company where five years have not elapsed since the cancellation of the registration” shall be construed as an “company where a person falls under the grounds for disqualifications for registration under the subparagraphs of Article 20” rather than a case where there was such fact in the past.

C) The proviso of Article 40(2) of the Installment Transactions Act provides that an administrative agency shall revoke the registration of a registered business in the case of the instant legal provision. This is distinguishable from the case where other laws and subordinate statutes prescribing the registration system as the grounds for disqualification as a means of voluntary revocation of registration, or where the grace period is set as the grounds for revocation of registration so that the registration can be resolved, while setting the grounds for revocation of registration. As a result, if the meaning of the instant legal provision as the Defendant’s assertion, regardless of whether the grounds for disqualification have been eliminated at the time of the disposition, is interpreted as a case where there is a lack of grounds for disqualification at any time in the past, regardless of whether the grounds for disqualification have been eliminated at the time of the disposition, the registration can only be uniformly revoked, and it is likely to violate the principle of excessive prohibition under Article 37(2) of the Constitution, which violates the constitutional interpretation principle

D) The defendant asserts that if the registration cannot be revoked on the ground that the relevant ground for disqualification was eliminated at the time of the disposition, it could not be subject to ex post facto sanctions on the past violation of the law, and that the act to eliminate the grounds for disqualification immediately before the disposition by abusing it could escape the purport of the provision on the grounds of the necessary revocation of registration. However, in such exceptional cases, the defendant's order to take corrective measures or suspend business (see Articles 39, 40 (1) 1, and 18 (3) of the Installment Trade Act) by deeming that the report following the act of removing the grounds for disqualification was false, and thus, in such exceptional cases, the report following the act of removing the grounds for disqualification was deemed to be false, and thus, it may be subject to a disposition of revocation directly on the grounds of the disposition. Thus, the interpretation as above does not lead to

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

The facts that Nonparty 1 was not an executive of Plaintiff 1 or 4 at the time of the instant first disposition are as seen earlier. As such, Plaintiff 1 or 4 did not constitute “cases falling under the grounds for disqualification of each subparagraph of Article 20” under the legal provisions of this case, and therefore, the instant first disposition based on the legal provisions of this case should be revoked in an unlawful manner.

3) Determination on the grounds for further disposition by the Defendant in this Court

At the time of the first disposition, the Defendant rendered the instant disposition in consideration of the fact that Nonparty 1 was an officer or a controlling shareholder as well as Plaintiff 1 and 4’s past or current officer at the time of the instant disposition. Article 20 subparag. 4 of the Installment Transactions Act provides that “If a person who was an officer or a controlling shareholder at the time of the revocation of registration pursuant to Article 40 falls under any of the officers or a controlling shareholder, the revocation of registration is allowed, and the two are not specifically classified, the Defendant may add the fact that he is a controlling shareholder through the instant lawsuit to the grounds for disposition. However, even if following such additional grounds for disposition, the instant first disposition is lawful.

However, in an appeal litigation seeking the revocation of an administrative disposition, a disposition agency may add or change other grounds to the extent that they are deemed identical to the original and basic facts. However, it is not allowed to assert the grounds for disposition on the grounds of separate facts, which are not the grounds for the original disposition. The existence of the factual identity here is determined depending on whether the social factual relations, which form the basis for the disposition, are identical in basic points, based on the specific facts prior to the legal evaluation of the grounds for disposition (see Supreme Court Decisions 2000Du8684, Sept. 28, 2001; 2004Du4482, Nov. 26, 2004).

In this case, although the original reason for the disposition was the reason that Nonparty 1 was the “executive” of the above plaintiffs, the reason that the defendant added to this lawsuit is the “controlling shareholder” of the above plaintiffs, the executive officers and controlling shareholders clearly distinguish legal status such as the requirements for establishment and method of publication, and even if it is prescribed concurrently in Article 20 Subparag. 4 of the Installment Trade Act, since the above plaintiffs can make a different normative evaluation in terms of correcting such unlawful state, it is difficult to view that the social factual relationship, which serves as the basis thereof, is basically the same. Therefore, the defendant cannot be allowed to add the new reason in the appellate court of the lawsuit in this case, and the above argument by the defendant is without merit.

4) Determination on the violation of the principle of good faith or abuse of rights

The defendant asserts that the above plaintiffs retired from the non-party 1 as an officer to avoid cancellation of registration, and that the non-party 1 again takes office after the first disposition of this case as an officer of the plaintiff 1 and the second company, and that the first disposition of this case is unlawful, it is against the principle of trust and good faith or it is not permissible as it constitutes abuse of rights.

The principle of trust and good faith is an abstract norm that the parties to a legal relationship should not exercise their rights or perform their duties in a way that violates the principle of trust and good faith by taking into account the other party’s interests, and thus, in order to deny the exercise of such rights on the ground that it violates the principle of trust and good faith, the other party provided good faith to the other party, or the other party provided good faith objectively, and the other party’s exercise of rights against the other party’s good faith should be in a state that is not acceptable in light of the concept of justice (see Supreme Court Decision 2008Du21300, Mar. 26, 2009).

As seen earlier, the fact that Nonparty 1 was appointed as a director of the Plaintiff 1 and 2 after the instant disposition is recognized as having reached the present time, but further, there is insufficient evidence to acknowledge that Nonparty 1 retired and took office again as above in order to avoid the revocation of the instant disposition. However, even until now until the instant lawsuit is pending, it is unreasonable to assert that Nonparty 1, who falls under the grounds for disqualification, represents Plaintiff 1 and 2, and asserts that the instant disposition is illegal. However, as seen earlier, it is difficult to deem that the illegality of the instant disposition that the Defendant’s wrongful interpretation of the laws and regulations is larger than the interest to remove the instant disposition, or that accepting the instant lawsuit is unreasonable in light of the concept of justice. Rather, it is not a passive method that prevents the Plaintiff from claiming the revocation of the instant first disposition, but it is reasonable for the Defendant to voluntarily cancel the instant disposition and to resolve it through a new affirmative method based on the grounds (such as executives, controlling shareholders, etc. at present) in the instant lawsuit under the correct interpretation, and it is no longer reasonable for the Defendant’s assertion of due process.

3. Whether the second disposition in this case is legitimate

A. cite the reasoning of the judgment of the court of first instance

The reasoning for this part of this Court is as follows, and the corresponding part of the reasoning of the first instance judgment (from 6th to 9th 19th 9th ) is the same with that of the corresponding part of the reasoning of the first instance judgment, except for the addition of the judgment by this court. Thus, this Court shall accept it in accordance with Article 8(2) of the Administrative Litigation Act, the Civil Procedure Act, and the main text of

B. The part that was changed by this court

▣ 제1심판결서 8쪽 18행부터 19행 사이에 있는 “주식양수도 계약을 체결하고도 그 사실을 공제조합에 고지하지 않았기 때문이고”를 “주식양수도 계약을 체결하고도 그 사실을 공제조합에 고지하지 않았기 때문이고[다만 갑 10호증(주식등 변동상황명세서)의 기재에 의하면, 2014. 1. 1.부터 2014. 12. 31.까지 원고 5회사의 주식이 양도된 사실이 나타나지 않으므로, 공제조합이 위 사유를 들어 이 사건 공제계약을 중지한 것은 적절하지 못하나, 앞서 본 바와 같이 추가 담보금을 미납한 사실은 인정되므로, 위 사실만으로 공제조합의 공제계약 중지 자체가 위법하다고 보기는 어렵다)”로 고친다.

C. The portion added by this Court

The Plaintiff 5 asserts that, since the Plaintiff 5’s financial status was not bad before the suspension of the use of the CR services again conducted by this court, the Plaintiff would not be terminated the instant mutual aid agreement by paying additional security money if the Fair Trade Commission was not unfairly suspending the use of the Plaintiff 5’s CR services through the financial settlement center, but it is obvious that the Plaintiff would not be terminated the instant mutual aid agreement. However, the Defendant’s taking account of such circumstances into account is unlawful by abusing and abusing its discretionary authority.

However, the first instance court’s determination rejecting the Plaintiff’s assertion on the ground that all the evidence presented at the first instance court and the additional evidence (A1-12) presented at this court were justifiable (in particular, evidence A12 is merely a material indicating the financial status and advance payment status as of the end of December, 2013 or the end of April 2014 of the Plaintiff 5, and thus, it is difficult to view that the Plaintiff’s financial status of the Plaintiff Company was not bad on or around July 2014 where the secured money was unpaid). The foregoing argument by the Plaintiff 5 is without merit.

4. Conclusion

Therefore, the claims of the Plaintiff 1 through 4 are reasonable, but the claims of the Plaintiff 5 are without merit. As such, the judgment of the first instance is justifiable, the appeal of the Plaintiff 5 and the Defendant’s appeal are dismissed as it is without merit. The costs of appeal arising between the Plaintiff 5 and the Defendant are borne by the Defendant, respectively.

[Attachment]

For the purpose of judge Lee e-mail (Presiding Judge)

Note 1) The trade name before the change is Asan Trade Co., Ltd.

2) Article 49(5) of the Door-to-Door Sales Act and Article 13(2) of the Act on Registration of Credit Business, etc. and Protection of Finance Users provide that “where a person falls under disqualifications for registration,” such person’s arbitrary grounds for revocation of registration.

3) Article 83 of the Framework Act on the Construction Industry provides that “Where a corporation falls under the grounds for disqualification for registration,” the former part of subparagraph 4 of the same Article provides that “if an executive of a corporation registered in construction business falls under the grounds for disqualification for registration of construction business, he/she shall be excluded if the executive is replaced within three months from the date he/she becomes aware of the fact, he/she shall be excluded

4) At the time of the instant first disposition, Nonparty 1 took into account the fact that Nonparty 1 was the controlling shareholder of Plaintiff 1 or 4, but for such reason, in order to take an administrative disposition, it should have secured sufficient evidence to confirm it, but did not take such measures, and only through the order to submit tax information filed in the instant appellate trial, the Defendant secured some of such evidence.

(5) The receipt by Plaintiffs 1 and 2 of the advance notice related to the instant disposition and the written notice of the holding of the hearing by Nonparty 1 was on August 26, 2014 (A-1-5), which was subsequent to Nonparty 1’s resignation, supporting Plaintiff 1 and 2’s assertion.