The case holding that even if there is a person holding the right to permit the establishment of a market in accordance with the previous market law, the person holding that the market improvement project association can issue authorization for establishment to the market improvement project association meeting the legitimate requirements prescribed by the relevant provisions, such as the Special Act on the Promotion of Traditional Markets, etc., on the ground that the market improvement project association acquires the status of operator of a superstore subject to the disposition of authorization for the project implementation while the market improvement project is being

Article 22 of the former Special Act on the Development of Traditional Markets (amended by Act No. 7945 of Apr. 28, 2006) (see Articles 32 and 34 of the current Special Act on the Development of Traditional Markets and Shopping Districts), Article 32 (1) 11 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 8338 of Apr. 6, 2006), Article 8 of the Distribution Industry Development Act

Plaintiff Co., Ltd. (Law Firm KEL, Attorneys Lee Hon-soo et al., Counsel for the plaintiff-appellant)

Head of Gwanak-gu Seoul Special Metropolitan City

Seoul High Court Decision 2007Nu12264 decided Oct. 25, 2007

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the ground of appeal related to market improvement project entities, etc.

The lower court determined to the effect that the Defendant’s act of maintaining the city under the former Special Act on the Development of Traditional Markets (amended by Act No. 7945, Apr. 28, 2006; hereinafter “Special Act on Traditional Markets”) and the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 8338, Apr. 6, 2007; hereinafter “Urban Improvement Act”) was lawful for the purpose of facilitating the modernization of conventional markets in need of reconstruction and repair due to their deterioration, and the establishment of superstores under the Distribution Industry Development Act is aimed at promoting the efficient promotion and balanced development of the distribution industry and establishing commercial order, and thus, the purpose and requirements are different on the grounds that the Distribution Industry Development Act, etc. did not grant the Plaintiff the authority to implement the market improvement project.

In light of relevant statutes and records, the above judgment of the court below is just, and there is no error of law by misunderstanding legal principles as to the subject of market improvement project as otherwise alleged in the ground of appeal

2. As to the ground of appeal on the invalidation of the instant authorized disposition

After compiling the evidence of employment, the court below acknowledged the facts as stated in its reasoning, and determined that the instant disposition of authorization is not null and void as a matter of course on the ground that the Defendant’s association did not implement the instant market improvement project within the scheduled period of implementation, although the phrase “within 180 days from the date of application for the authorization to alter the establishment of the association” was stated in the “scheduled period of implementation” column for the establishment of the association as of October 4, 2006 for the instant association.

In light of the records, the above judgment of the court below is just, and there is no error of law as to the invalidation of administrative disposition as otherwise alleged in the ground of appeal.

3. As to the ground of appeal related to the omission of judgment

The completion of market improvement projects does not fall under the grounds for cancelling the registration of the superstore operator under Article 11 of the Distribution Industry Development Act. However, Article 22 (6) of the Special Act on Traditional Markets provides that "the Act on the Ownership and Management of Aggregate Buildings shall apply mutatis mutandis to matters not prescribed in this Act concerning market improvement projects," and Article 32 (1) 11 of the Urban Improvement Act provides that "when a project operator obtains authorization for the implementation of a project, he shall be deemed to have registered a superstore under Article 8 of the Distribution Industry Development Act." Thus, when a project operator obtains authorization for the implementation of a market improvement project during the course of the implementation of a market improvement project, the cooperative of this case shall acquire the status of the superstore operator from that time, while the existing building shall be removed (see Article 22 (4) of the Special Act on Traditional Markets). As asserted by the Plaintiff, the establishment of a superstore shall not overlap with the name of two persons (the plaintiff and the association of this case).

Therefore, even if the market improvement project in this case is implemented, there is no possibility that the superstore operator will become two persons. Thus, the court below held that the court below's decision that "it cannot be deemed that the defendant's act cannot be a ground for any obstacle to the establishment of the instant association that meets the legitimate requirements for authorization under the relevant provisions, such as the Act on the Maintenance of Urban Areas and Dwelling Conditions for Residents, even if the plaintiff had already obtained the permission for market establishment under the market law." Thus, the court below did not err in the omission of judgment as otherwise alleged in the ground of appeal.

4. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)