[1] In order to apply Article 13(4) of the Industrial Cluster Development and Factory Establishment Act, whether it is necessary to clearly indicate the application document to be submitted by the factory establishment support center on behalf of the Mayor, etc. in the application document itself or the process of submission (affirmative)

[2] Whether Article 6 (3) of the Enforcement Rule of the Industrial Cluster Development and Factory Establishment Act, which provides for the deadline for filing an application for approval of factory establishment, is a mandatory provision or an effective provision (negative)

[1] The purport of Article 7-2(1) and (3), Article 13(1), (4), and (5) of the Industrial Cluster Development and Factory Establishment Act as well as the language, structure, and purport of Article 13(4) of the Industrial Cluster Act (hereinafter “approval deeming provision”) that an application for approval of the establishment, extension, or change of business type (hereinafter “support center”) by a factory establishment support center (hereinafter “support center”) on behalf of the head of a Si/Gun/Gu shall be deemed to have been approved unless a decision on whether to approve the application within the processing period is made. Considering that an application for approval on behalf of the support center had already been subject to appropriate review and supplementation, etc. by the support center, it is necessary to support the smooth establishment of a factory by forcing the head of a Si/Gun/Gu (hereinafter “Mayor, etc.”) to process it more promptly than other application cases, and that the application documents should be submitted to the support center to determine whether the application documents should be applied within the period of approval between the date of application and the date of application.

[2] According to Article 6 (3) of the Enforcement Rule of the Industrial Cluster Development and Factory Establishment Act, the head of a Si/Gun/Gu (hereinafter “Mayor, etc.”) shall decide whether to grant approval within 20 days (14 days in cases where the entire content of an application for approval for factory establishment, etc. falls under the authority of the Mayor, etc., and 7 days in cases where the legal fiction of authorization, permission, etc. under other Acts is not required) from the date of receiving the application for new construction, extension or alteration of business type (hereinafter “factory establishment, etc.”), but the above provision is merely a decoration provision that stipulates that approval shall be carried out as soon as possible, and it shall not be deemed a mandatory provision or an effective provision. Accordingly, the rejection disposition is not illegal on the ground that the Mayor, etc. issued a disposition rejecting an application for approval for factory establishment, etc. after the lapse of the above period. Furthermore, it is not considered that

[1] Articles 7-2(1) and (3), 13(1), (4), and (5) of the Industrial Cluster Development and Factory Establishment Act / [2] Article 6(3) of the Enforcement Rule of the Industrial Cluster Development and Factory Establishment Act

Plaintiff (Attorney Kang Jae-sik, Counsel for plaintiff-appellant)

Busan Gun (Law Firm Geum River, Attorneys Go-gu et al., Counsel for the defendant-appellant)

Busan High Court (Chowon) Decision 2016Nu10582 decided September 21, 2016

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. Regarding ground of appeal No. 1

A. Article 7-2 of the Industrial Cluster Development and Factory Establishment Act (hereinafter referred to as "industrial cluster") provides that the Korea Industrial Complex Corporation shall establish a factory establishment support center (hereinafter referred to as "support center"), and the head of a support center who is requested to vicariously conduct affairs related to the factory establishment shall transfer the documents to the head of a Si/Gun/Gu (hereinafter referred to as "Mayor, etc.") and the head of a related administrative agency (hereinafter referred to as "head of a Si, etc.") to process them (hereinafter referred to as "factory establishment, etc.") and Article 13 provides that a person who intends to newly establish, expand, or change a type of business (hereinafter referred to as "factory establishment, etc.") a factory, the construction area of which is at least 50 square meters, shall obtain approval from the Mayor, etc. as prescribed by Presidential Decree (paragraph (1) within the scope of paragraph (3), and that the Mayor, etc. shall notify the head of a support center of the reason for delayed processing or approval within 20 days from the date on which he/she received documents from the head of a support center pursuant to Article 7-2(3).

In addition to the language, structure, and purport of the Industrial Cluster Act, the purport of Article 13(4) of the Industrial Cluster Act, which provides that an application for approval of factory establishment, etc. by a support center as proxy, shall be deemed approved if no decision is made within the processing period. The purpose of the above provision is to effectively support the smooth establishment of a factory by forcing the Mayor, etc. to process it more promptly than other applications, considering that the application for approval by the support center had already been made an appropriate review and supplementation by the support center, and the application for approval by proxy is applied only when the support center provides a request for approval of factory establishment, etc. on behalf of the Mayor, etc. and it is possible for the mayor, etc. to know that the application was sent from the support center, etc., to consider the processing period set forth in the main provision of the approval, and the receipt date of the application for the application is the initial date of the processing period set by the main provision of the application for approval, so it should be considered that the application for the application for approval must be submitted to the support center itself in principle at the time of the application.

B. According to the reasoning of the lower judgment and the reasoning of the first instance judgment partially accepted by the lower court, the head of the Changwon who vicariously performed the Plaintiff’s business of factory establishment support center returned to the public official in charge at the time when receiving the Plaintiff’s application for approval for factory establishment and the Defendant’s business plan in the Defendant’s civil petition reception counter. The fact that the application for approval for factory establishment establishment and the business plan were prepared in the Plaintiff’s name and did not indicate that the original support center was acting for the establishment of a factory, and that the head of the original support center knew the Defendant’s public official in charge and confirmed that the application was well received by disclosing that the head of the original support center was an employee of the original support center by phone to the Defendant’s public official in charge, and the Defendant issued the instant

Examining these facts in light of the legal principles as seen earlier, the fact that the head of the Changwon Support Center had an application document that does not clearly indicate the purpose of the agency’s agent’s act on behalf of the Plaintiff and sent the application document to the public official in charge, alone, cannot be deemed as clearly indicated in the application of this case, and thus, the provision deeming the application of this case does not apply to the instant application.

The judgment of the court below to the same purport is just, and contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles on the application of the recognition deeming provision.

2. Regarding ground of appeal No. 2

According to Article 6 (3) of the Enforcement Rule of the Industrial Cluster Development and Factory Establishment Act, the Mayor, etc. shall decide whether to grant approval within 20 days (14 days where the entire contents of an application for approval for factory establishment, etc. belong to the authority of the Mayor, etc., and 7 days where the legal fiction of authorization, permission, etc. under other Acts is not required) from the date of receipt of the application for factory establishment, etc., but the above provision is merely a decoration provision that stipulates that approval shall be carried out as soon as possible, and it does not constitute a mandatory provision or an effective provision. Therefore, the rejection disposition may not be deemed unlawful on the ground that the Mayor, etc., issued a disposition to refuse the application for approval for factory establishment, etc. after the lapse of

Examining the reasoning of the judgment below in light of the above legal principles, it is just to determine that the processing period stipulated in the above provision is a decoration provision, and there is no error by misapprehending the legal principles on the processing period for an application for approval for factory establishment, etc.

3. 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.

Justices Jo Hee-de (Presiding Justice)