2017Nu34904 Revocation of a disposition revoking approval of surveillance work

Medical Corporations, the Legal Corporations and the White Medical Foundation

The Administrator of the Central and Central Regional Employment and Labor Office;

Suwon District Court Decision 2015Gudan33602 Decided January 13, 2017

May 17, 2017

May 31, 2017

1. Revocation of the first instance judgment.

On September 24, 2015, the Defendant revoked the revocation of the Defendant’s exemption from application to the Plaintiff’s surveillance employee.

2. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. The part citing the judgment of the first instance

Inasmuch as the court’s reasoning concerning this case is identical to that of the corresponding part of the judgment of the court of first instance (section 2, No. 2, and No. 20, respectively of the judgment of the court of first instance), the part concerning the reasons for the disposition is cited in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the

2. Determination on the procedural legitimacy of the instant disposition

A. The plaintiff's assertion

In the instant disposition, there is an error of omission of prior notification under the Administrative Procedures Act and giving an opportunity to present opinions.

B. Determination

1) According to Articles 21(1), 21(3), 21(4), and 22 of the Administrative Procedures Act, where an administrative agency imposes an obligation on a party or imposes a restriction on his/her rights and interests, it shall notify the parties concerned of the matters such as “the title of the disposition”, “the facts causing the disposition and contents of the disposition, and legal basis thereof, “the method of processing the submission of their opinions,” “the name and address of the agency proposing the opinions,” and “the deadline for submitting their opinions,” and “the due date for submitting their opinions, etc. shall be determined by considering a reasonable period necessary for submitting their opinions. In cases where other Acts and subordinate statutes stipulate that a hearing or a public hearing shall be held, the parties concerned shall be given an opportunity to present their opinions: Provided, That if an administrative agency gives prior notice or does not provide the parties with an opportunity to present their opinions in the course of infringing administrative dispositions, prior notice or hearing of opinions shall not be exempted due to the exception of prior notice or hearing (see, e.g., Supreme Court Decision 2016Du168.

2) The instant disposition constitutes an infringing administrative disposition, on the ground that the Plaintiff’s revocation of the instant disposition retroactively from the head of the Suwon Regional Labor Office on May 7, 2001, on the part of the head of the Suwon Regional Labor Office’s supervisor pursuant to Article 61 subparag. 3 of the former Labor Standards Act and Article 12(2) of the former Enforcement Rule of the Labor Standards Act, which is a monitoring employee who is exempt from the application of the provisions on working hours, recess and holidays as stipulated in Chapters 4 and 5 of the former Labor Standards Act (hereinafter “instant approval disposition”).

Since the Defendant, while rendering the instant disposition, voluntarily recognizes the fact that prior notice is given to the parties or the opportunity to present opinions is not given, the instant disposition cannot avoid revocation due to its illegality, barring any circumstances falling under the exceptional cases of prior notice or submission of opinions.

3) The Defendant asserts that the instant disposition is not an invasion disposition, since it is not necessary to separately revoke the instant disposition as an invalidation disposition. Thus, the instant disposition is merely a declaration that the instant disposition is null and void from the beginning.

In full view of the contents of Gap evidence 1-1 and Gap evidence 2-2 and the purport of the whole arguments, the plaintiff's application for exemption from the application is defective, the head of the division, the head of the division, and the chief of the board of directors who judged that the plaintiff's application of the provisions of Article 61-3 of the former Labor Standards Act and Article 12 (4) of the former Enforcement Rule of the Labor Standards Act is appropriate on May 7, 2001 after investigating the actual status of the worker's work environment and all labor management for surveillance workers, and approved it through the approval of the head of the division, the head of the division, and the chief of the board of directors. The plaintiff notified the plaintiff of such contents and served on May 11, 201, and the approval disposition of this case after the approval disposition of this case remains effective, even if considering all the circumstances asserted by the defendant, it is insufficient to recognize that the approval disposition of this case does not exist from the beginning or its defect is significant and obvious. Therefore,

3. Conclusion

Since the disposition of this case is unlawful, the plaintiff's claim seeking revocation shall be accepted on the grounds of its reasoning. The judgment of the court of first instance is inappropriate on the grounds of its conclusion. Accordingly, the judgment of the court of first instance is revoked, and the disposition of

Mobilization by the presiding judge

Judges Kim Gin-han

Judge Lee Jae-soo