2019Du61120 Action for revocation of a disposition for change in business type, etc.

A Stock Company

Law Firm Han-soo (Attorney Shin Jong-jin, Lee Jae-jin, Lee Young-young, Counsel for the defendant-appellant in charge);

For the purposes of transmission)

Korea Labor Welfare Corporation

Busan High Court Decision 2018Nu23633 Decided November 22, 2019

April 29, 2020

The judgment below is reversed, and the case is remanded to Busan High Court.

The grounds of appeal are examined.

1. A. The term “disposition” as the subject of an appeal litigation refers to an exercise or refusal of public authority as an enforcement of law with respect to a specific fact by an administrative agency, and other similar administrative actions (Article 2(1)1 of the Administrative Litigation Act). Whether an act by an administrative agency may be subject to appeal litigation cannot be determined objectively and generally. In a concrete case, the determination should be based on the content and purport of the relevant Acts and subordinate statutes, the subject, content, form, and procedure of the act, the substantial relation between the act and the disadvantage suffered by interested parties, such as the other party, and the attitude of the administrative agency or interested parties related to the act (see, e.g., Supreme Court en banc Decision 2008Du167, Nov. 18, 2010). In addition, where it is unclear whether an act by an administrative agency constitutes “disposition”, the determination should be based on considering the possibility and predictability of the other party having a significant interest in the choice of the method of appeal (see, e.g., Supreme Court Decision 2013Du536365.

B. Examining the contents and systems of Articles 11(1), 12(1), 13(5), 14(3), 16-2, 16-6(1), and 16-9(2) and (3), and 19-2 of the Act on the Collection of Insurance Premiums, etc. for Employment Insurance and Industrial Accident Compensation Insurance; Article 9 subparag. 3 of the Enforcement Decree of the same Act; and Article 12 of the Enforcement Rule of the same Act; and the Regulations on the Application and Imposition of Administrative Affairs enacted for the purpose of stipulating the matters delegated by the above statutes and the matters necessary for the enforcement thereof, “determination for modification of the type of business of an individual business established by the Korea Workers’ Compensation and Welfare Service against the business owner constitutes “disposition as an exercise of public authority” as an enforcement of the law on specific facts conducted by an administrative agency (see Supreme Court Decision 2019Du6137, Apr. 9, 202).

2. Nevertheless, on February 14, 2018, the lower court determined that the Defendant’s act of changing the type of business of a workplace subject to industrial accident insurance relationship into “Do, retail and repair business of goods for consumers” (type code: 9101) to “business of melting and treating various metals” (type code: 21814) and that the act of notifying the Plaintiff does not constitute a disposition subject to appeal litigation. In so determining, the lower court erred by misapprehending the legal doctrine on the disposition subject to appeal litigation, thereby adversely affecting the conclusion of the judgment.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-soo

Justices Kim Jong-il

Chief Justice Lee Dong-won

Justices Park Il-san