[1] The legal nature of the disposition concerning the acceptance of reports on succession to status by transfer or acquisition of tourism business under the former Tourism Promotion Act

[2] The case holding that where a trustee in bankruptcy can exercise the right to terminate the agreement on the transfer and acquisition of tourism business under the former Tourism Promotion Act, it may suspend the acceptance of the report on succession to status under the above agreement until the dynamic state of transfer and acquisition under the transfer and acquisition agreement is resolved according to the exercise of the right to terminate

[1] In full view of the forms of relevant provisions, such as Article 8 of the former Tourism Promotion Act (amended by Act No. 6633 of Jan. 26, 2002), and the forms of stay or language, etc., reports on succession to status by transfer or acquisition of tourism business are lawful and effective business transfer, and the administrative agency cannot refuse acceptance for other reasons unless there is grounds for disqualification under each subparagraph of Article 7(1) of the former Tourism Promotion Act to the transferee. Thus, the disposition on acceptance of the above reports cannot be deemed as discretionary act.

[2] The case holding that where a trustee in bankruptcy can exercise the right to terminate the agreement on the transfer and acquisition of a tourism business under the former Tourism Promotion Act, it may suspend the acceptance of the report on succession to status under the above agreement until the dynamic state of transfer and acquisition is resolved according to whether the right to terminate the agreement is exercised

[1] Articles 7 (1) and 8 of the former Tourism Promotion Act (amended by Act No. 6633 of Jan. 26, 2002) / [2] Articles 7 (1) and 8 of the former Tourism Promotion Act (amended by Act No. 6633 of Jan. 26, 2002), Article 64 subparagraph 1 of the former Bankruptcy Act (amended by Act No. 7428 of Mar. 31, 2005) (refer to Article 10 of the current Debtor Rehabilitation and Bankruptcy Act)

Korean Condo Control Co., Ltd. (Attorney above-Law)

Do Governor of Chungcheongnam-Nam

Daejeon High Court Decision 2003Nu1279 delivered on January 26, 2006

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

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1 and 3

After finding the facts as stated in its holding, the court below held that the agreement of this case where the plaintiff requires the plaintiff to manage and operate the contact facilities is likely to be subject to the exercise of the right to set aside by the trustee in bankruptcy as stipulated in Article 64 subparagraph 1 of the former Bankruptcy Act (amended by Act No. 7428 of March 31, 2005, hereinafter the same shall apply), and that the agreement of this case constitutes an executory contract as stipulated in Article 50 of the former Bankruptcy Act and thus the right to set aside or terminate is granted to the trustee in bankruptcy. Upon examining the reasoning of the judgment below in light of the records, the judgment of the court below is just and acceptable, and there are no errors in the misapprehension of the rules of evidence, or in the misapprehension of legal principles as to the transfer of the right to manage and operate the contact, or in the misunderstanding of facts.

2. As to the grounds of appeal Nos. 2 and 4

In full view of the forms of relevant provisions, such as Article 8 of the former Tourism Promotion Act (amended by Act No. 6633, Jan. 26, 2002; hereinafter the same) and the forms, stay, language, etc., reports on succession to the status by transfer or acquisition of tourism business are lawful and effective transfer of business, and the administrative agency cannot refuse acceptance for any other reason unless there is a ground for disqualification under each subparagraph of Article 7(1) of the former Tourism Promotion Act to the transferee. Thus, the lower court erred by deeming the instant disposition as discretionary act.

However, in light of the records, the defendant issued the disposition of this case as to the plaintiff's report on succession to the status, which was based on the transfer and acquisition of the tourism business agreement of this case, to the effect that the defendant suspended the acceptance of the report until the dynamic situation where the effect of the agreement can be resolved according to the trustee's right to terminate or the right to set aside, and such defendant's measures are not deemed to be beyond the scope of the right to review which was held in acceptance of the report. Thus, the court below's conclusion that the disposition of this case is legitimate is just, and there is no violation of law such

3. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Ill-sook (Presiding Justice)