Effects of the disposition of construction business suspension taken by the head of the Gu

The State affairs concerning construction business suspension, etc. are delegated by the head of Seoul Metropolitan Government to the Minister of Construction and Transportation as a local administrative agency, and thus re-entrusted to the head of the Gu by municipal ordinance is invalid because it is subject to state affairs beyond the scope of the legislative authority.

Articles 50 and 57 of the Construction Business Act, Article 5 of the Government Organization Act, Article 93 of the Local Autonomy Act, Article 4 of the Regulations on Delegation and Entrustment of Administrative Authority

[Plaintiff-Appellant] Jin31, 1992 (Gong1992, 2575)

Co., Ltd.

The head of Yeongdeungpo-gu Seoul Metropolitan Government

1. The defendant's disposition of suspension of construction business against the plaintiff on July 9, 1993 is invalid.

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

The same shall apply to the order.

1. Details of the disposition;

A. On July 9, 1993, the Defendant made a disposition suspending business against the Plaintiff for four months from July 7, 1993 to November 6 of the same year pursuant to Article 22 and Article 50 (2) 3 of the Construction Business Act (hereinafter “Act”) on the ground that the Plaintiff entered into a contract with the Public Procurement Service on December 8, 1992 with respect to the installation works of fences around the difficult map, which the Defendant ordered to do so, but the Plaintiff was awarded a lump sum subcontract to the Non-Party Commercial Corporation (hereinafter “the instant disposition”).

B. The Minister of Construction and Transportation, who is the authority of disposal under the Construction Business Act, delegated the above disposal authority to the Mayor of Seoul Special Metropolitan City, etc. pursuant to Article 57 of the Act, and the Mayor of Seoul Special Metropolitan City, who was approved by the Minister of Construction and Transportation pursuant to Article 4 of the Regulations on Delegation and Entrustment of Administrative Authority on February 18, 1989, re-entrusts it to the head of the Gu including the defendant, as prescribed by the Seoul Special Metropolitan City Ordinance on Delegation of Administrative Authority (No. 26

(Personal Information to be Recognized)

Facts without dispute, Gap evidence 1, Eul evidence 2 and 3, and the whole purport of the pleading.

2. The plaintiff's assertion

First, according to Article 50 (2) of the Act, a person who is authorized to suspend business under the above Act is the Minister of Construction and Transportation, and when he intends to delegate it, he can only delegate it to the Mayor/Do Governor or the head of the Regional Construction and Management Administration under Article 57 of the Act, as prescribed by the Presidential Decree, and there is no legal ground to re-entrust it to the head of the Gun/Gu, etc., so the disposition of this case by the

Second, even if it is deemed that the re-election can be conducted without any legal basis without the legal basis of the re-election, it shall be conducted pursuant to Article 4 of the Regulations on Delegation and Entrustment of Administrative Authority, and in this case, it shall be conducted pursuant to the Ordinance of the Seoul Special Metropolitan City Council without the explicit ground of delegation of the Act. Therefore, the disposition of this case shall be confirmed as invalid because it is conducted by a person without authority

3. Determination

Article 5 (1) of the Government Organization Act allows administrative agencies to delegate part of their duties to subsidiary agencies or subordinate administrative agencies, other administrative agencies, local governments, or their subordinate agencies, while Article 5 (1) of the Government Organization Act allows administrative agencies to delegate part of their duties to subsidiary agencies or subordinate administrative agencies, and there is a general provision that allows delegated agencies to re-entrust part of their delegated duties to subsidiary agencies or subordinate administrative agencies as prescribed by law.

Therefore, even if there is no provision concerning re-election in this case, as long as it conforms to the requirements of re-election of administrative authority under Article 4 of the Regulations on Delegation and Entrustment of Administrative Authority based on the above Government Organization Act, the re-election against the defendant of the Seoul Special Metropolitan City Mayor is not invalidated, the first argument of

However, affairs concerning the regulation of construction business, such as the suspension of business, cannot be handled by a local government as the state affairs, and in this case, the Seoul Special Metropolitan City Mayor is merely delegated by the Minister of Construction and Transportation as a local administrative agency and thus, if the power of entrustment is re-entrusted pursuant to Article 4 of the Regulations on Delegation and Entrustment of Administrative Authority, matters concerning re-delegation can only be determined by

However, in this case, the Mayor of Seoul Special Metropolitan City did not enact the above rules concerning the re-delegation of authority and re-elections as prescribed by the Municipal Ordinance. Since the ordinances are subject to state affairs beyond the scope of the legislative authority, such re-elections is null and void (see Supreme Court Decision 92Da31, Jul. 28, 1992). Therefore, the disposition of this case is executed under the name of the defendant without authority, and thus, the plaintiff's second argument is reasonable.

4. Conclusion

Thus, the plaintiff's claim seeking confirmation of nullity of the disposition of this case is just and reasonable, and therefore, it is accepted, and the costs of lawsuit are assessed against the losing party. It is so decided as per Disposition.

Judges Lee Jae-ho (Presiding Judge)