[1] Whether a previous disposition such as suspension of business may be taken against a person who succeeded to the status of a petroleum retailer on the ground that the previous petroleum retailer committed an illegal act selling pseudo petroleum products (affirmative)

[2] Whether it is in violation of the Constitution to impose sanctions, such as suspension of business, on a person who succeeded to the status of a petroleum retailer by acquiring a petroleum sales facility through an auction, on the ground that the former petroleum retailer committed an illegal act selling similar petroleum products (negative)

[1] In full view of the fact that the active registration requirements for petroleum retail business under Article 9(3) of the Petroleum Business Act and the Enforcement Decree thereof, the passive grounds for disqualification under Article 9(4), Article 5, Article 9(4), Article 7(4), and Article 7(1) of the Petroleum Business Act, as well as the case of a mere acquisition of only a petroleum sales facility through auction, etc., the succession to the status of the petroleum retailer is recognized. In principle, the registration of a petroleum retail business has the characteristic of a substitute material permission in principle, and the disposition such as business suspension that a petroleum retailer is subject to a penalty surcharge under Article 13(3)6 and Article 13(1)11 of the same Act by violating the prohibition of sale of pseudo petroleum products under Article 26 of the same Act is not a sanction against an individual's qualification, but a disposition of imposition of a penalty surcharge against a business in whole or in part, and thus, the succession to the status can be considered as a sanction against the successor of the status of the previous petroleum retailer, including business suspension, etc.

[2] In full view of the fact that Article 26 of the Petroleum Business Act provides for the purpose of preventing the distribution of pseudo petroleum products which have a socially and economically harmful impact, and it is necessary to secure the effectiveness of sanctions against such violation, an auction, one of the grounds for succession to the status, is limited to petroleum sales facilities, and the succession to the status of a petroleum seller is not forced due to an auction, and the succession to the status of a petroleum seller may enforce liability against the previous petroleum seller's violation, and the above penalty surcharge is imposed in lieu of the disposition of business suspension, the above interpretation on succession to the status of a petroleum seller and the disposition of imposition of penalty surcharge is not against the freedom of business, the guarantee of property rights, or the principle of equality in succession to the status of an auction.

[1] Articles 5, 7, 9, 13, 14, and 26 of the Petroleum Business Act / [2] Articles 5, 7, 9, 13, 14, 26, 11, 15, and 23 of the Petroleum Business Act

[1] Supreme Court Decision 85Nu685 decided Jan. 21, 1986 (Gong1986, 393), Supreme Court Decision 86Nu203 decided Jul. 22, 1986 (Gong1986, 1133), Supreme Court Decision 93Nu21231 decided Oct. 25, 1994 (Gong194Ha, 3134), Supreme Court Decision 94Nu9146 decided Feb. 24, 1995 (Gong195Sang, 1477), Supreme Court Decision 96Nu18960 decided Jun. 26, 1998 (Gong198Ha, 2010), Supreme Court Decision 1601Du16011 decided Jun. 29, 2001 (Gong1998Ha, 2010)

Plaintiff (Attorney Kim Jong-soo, Counsel for the plaintiff-appellant)

Ansan Market (Attorney Lee Won-gu, Counsel for defendant-appellant)

Seoul High Court Decision 2002Nu13101 delivered on July 1, 2003

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

In full view of the fact that the active requirements for registration of petroleum retail business under Article 9(3) of the Petroleum Business Act and Article 9(4), Article 5(4), Article 7(4), and Article 9(4) and Article 7 recognizes the succession to the status of a petroleum retailer even in cases where only a petroleum sales facility is simply acquired through auction, etc. as well as the business transfer, death, and merger of a petroleum retailer, the registration of a petroleum retail business has the nature of a substitute material permission in principle, and the disposition such as suspension of business that a petroleum retailer violates Article 26(3)6 and Article 13(1)11 of the same Act and the disposition of suspension of business imposed under Article 13(3) of the same Act and Article 13(3)11 of the same Act and its Enforcement Decree has the character of a disposition of suspension of business imposed on the whole or part of the business, and thus, the above succession to the status can not be deemed as a disposition of suspension of business imposed on the person who succeeds to the status of the construction business, including the suspension of business by the previous petroleum retailer's.

In addition, Article 26 of the Petroleum Business Act provides for the purpose of preventing the distribution of pseudo petroleum products harmful to the society and economy, and it is necessary to secure the effectiveness of sanctions against such violation, an auction, one of the grounds for succession to the status, is limited to the petroleum sales facilities, and the succession to the status of a petroleum seller is not enforced due to an auction, and the succession to the status of a petroleum seller may enforce liability against the previous petroleum seller's violation, and the above penalty surcharge is imposed in lieu of the disposition of business suspension, the above interpretation on the succession to the status of a petroleum seller and the disposition of imposition of penalty surcharge cannot be deemed to violate the freedom of business, the guarantee of property rights, or the principle of equality, etc. in the succession to the status by auction.

In the above purport, the court below was just in holding that the disposition of this case, which imposed a penalty surcharge in lieu of business suspension on the plaintiff who succeeded to the status as a petroleum retailer after acquiring the petroleum sales facilities owned by the former petroleum retailer No. 1 through auction, after receiving a report on succession to status and an application for change of registration, was legitimate. In so doing, contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal nature of the registration of the petroleum retail business and the legal principles on the unconstitutionality

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition.

Justices Lee Yong-woo (Presiding Justice)