[1] Whether the decision subject to approval for a CATV broadcasting business and the issuance of a certificate of approval constitutes an administrative disposition subject to appeal litigation (affirmative)

[2] The case revoking a disposition of approval for CATV broadcasting business to a CATV relay broadcasting business operator who is wholly controlled by the existing CATV broadcasting business operator within the same broadcasting zone on the ground that there is no possibility of expectation to achieve the purpose of the approval system

[1] Since a CATV relay broadcasting business operator acquires a conclusive status as a CATV relay broadcasting business operator only when he/she receives a letter of approval from the Korea Broadcasting Commission, the issuance of a letter of approval for a CATV relay broadcasting business operator constitutes an authoritative administrative disposition with the nature of approval for a CATV relay broadcasting business. Meanwhile, even if a CATV relay broadcasting business operator does not have a conclusive status as a CATV relay broadcasting business operator, he/she is in the legal status that can become a CATV relay broadcasting business operator by obtaining a letter of approval only when he/she performs all the matters set forth in the public notice of approval, and such legal status is distinguishable from a conclusive position obtained by receiving a letter of approval. Thus, there is a need to be a separate legal protection. Thus, the above decision of a person

[2] The case revoking a disposition of approval for CATV broadcasting business to a CATV relay broadcasting business operator who is wholly controlled by the existing CATV broadcasting business operator within the same broadcasting zone on the ground that there is no possibility of expectation to achieve the purpose of the approval system

[1] Articles 9(3) and (4), and 16 of the Broadcasting Act; Articles 7 and 16(1) of the Enforcement Decree of the Broadcasting Act; Article 2 of the Administrative Litigation Act / [2] Articles 9(3) and (4), 10, and 16 of the Broadcasting Act; Articles 7 and 16(1) of the Enforcement Decree of the Broadcasting Act

[Defendant-Appellant] Korea Cable Broadcasting Co., Ltd. (Attorney Park Jong-soo et al., Counsel for defendant-appellant)

Korea Broadcasting Commission (Law Firm Gyeong & Yang, Attorneys Shin Shin-affiliated, Counsel for defendant-appellant)

Cratdo Broadcasting Co., Ltd. (Law Firm Seocheon, Attorneys Yellow-gu et al., Counsel for defendant-appellant)

June 17, 2003

1. The defendant's decision to obtain approval for a CATV broadcasting business as of April 30, 201 against the defendant's Intervenor, and the decision to issue a certificate of approval for a CATV broadcasting business as of July 30, 2001, and (b) the decision to refuse to grant approval for a CATV broadcasting business as of April 30, 201 against the plaintiff as of April 30, 2001, respectively.

2. Of the costs of lawsuit, the part pertaining to the intervention by the Defendant is assessed against the Intervenor, and the remainder is assessed against the Defendant, respectively.

The same shall apply to the order.

1. Basic facts

A. The defendant, as the person entitled to approve a CATV broadcasting business from a CATV relay broadcasting business operator under Article 9(3) of the Broadcasting Act, announced the application for approval of a CATV relay broadcasting business to a CATV relay broadcasting business operator under Article 200-55 of the Korean Broadcasting Commission’s announcement on December 30, 200, and the main contents are as follows:

(1) Matters to be approved

○ Approval for CATV relay broadcasting business by a CATV relay broadcasting business operator under Article 9(3) of the Broadcasting Act and Article 7 of the Enforcement Decree of the same Act.

○ Number of approved business operators: Not more than one business operator for each broadcasting zone.

Pursuant to Article 7(2) of the Addenda to the Broadcasting Act, the broadcast area shall be limited to an area where the grace period expires in March 2001, and its broadcast area shall be subject to "Public Notice No. 1997-1".

(2) Qualifications for applying for approval

Among persons who have obtained a license for a CATV relay broadcasting business operator under Article 9 (2) of the Broadcasting Act, the ratio occupied by the number of subscribers of the relevant business operator to the total number of households within the CATV relay broadcasting business area in which the relevant business operator is located is 15/100

(3) Application for approval

○ Receipt of an application

- Period of receipt: February 5, 2001 to 10 (c)

(4) Examination of approval

(a)Basic direction;

○ A business operator who meets the review criteria set forth in Article 10(1) of the Broadcasting Act shall be approved.

○ Approval of the entrepreneur who meets the foundation for the integration of cable broadcasting markets.

○ A business operator who can revitalize the composite cable broadcasting industry and invest related facilities should be approved.

- The minimum capital must be at least five billion won.

-The appraisal value of an officially certified appraisal body shall be presented, and any assets which are not in conformity with the technical standards shall not be recognized.

- The plan to convert the facility and its subscriber should be reasonable and secure current assets for this purpose.

(B) Method of review

○ The method of examination shall be accompanied by an absolute evaluation and comparative evaluation by region.

- A single project application area: an absolute evaluation (assumptive evaluation below the base point);

- A multiple business application area: A comparative assessment if there are multiple transit enterprises after an absolute assessment.

(v)distribution of terms and conditions of approval;

○ The Korean Broadcasting Commission may impose the following conditions, etc. upon approval:

- Matters necessary for the implementation of the programme;

- Prohibition of change to a major shareholder within the approval period (3 years), except where prior approval is obtained from the Committee due to unavoidable reasons, such as inheritance and court rulings, and consolidation is made with a regional CATV broadcasting business operator in the area), and prohibition of reduction of capital;

○ Delivery of Written Approval

- The approved project executor shall submit the necessary documents, such as a statement of performance, which guarantees the establishment registration, payment of capital, and fulfillment of the conditions of recommendation for permission, by the time limit set by the Korean Broadcasting Commission, and may extend such time limit only once if the justifiable reasons are recognized.

(6) Schedule.

Approval of ○ Business Operator: end of April 2001 (Scheduled)

(7) Cautions

The license of a CATV relay broadcasting business operator is terminated from the date of issuance of the certificate of approval. Provided, That even if the completion inspection and the approval for usage fees are transferred, the service (limited to CATV relay broadcasting services) should be provided to the existing subscribers of the relevant business operator at the pre-approval rate.

-the transmission of the PP channel to be transmitted by a CATV broadcasting business operator shall be possible within one month after an application for completion inspection and shall be conducted after completion inspection;

An applicant for approval shall not file an application for recommendation for permission for change under Article 15(1) of the Broadcasting Act during the period of approval review, and shall not engage in any act that may interfere with the prompt and smooth promotion of review affairs.

The approved business operator shall undergo a completion inspection within the deadline under Article 79 of the Act and Article 62 of the Enforcement Decree of the Act.

B. According to the above application for approval, the application for approval was received from 54 CATV relay broadcasting business operators of 53 broadcasting zones among 53 broadcasting zones. The defendant decided 38 CATV relay broadcasting business operators of 38 broadcasting zones of April 30, 200 through the examination by the examination committee composed of broadcasting experts, etc. and the consultation procedure with the Minister of Information and Communication.

C. Meanwhile, in the Seoul Dobong-gu broadcasting zone where the Plaintiff belongs, two CATV relay broadcasting business operators of the Plaintiff and the Dobongbuk-gu Cable Broadcasting Co., Ltd. (hereinafter referred to as the “ Intervenor”) filed an application for the above approval. In accordance with the notice that only one business operator is approved within one broadcasting zone, the Defendant determined the Intervenor with the total point of 804.05 points and the Plaintiff with the total point of 775 points of 775 points, respectively. The absolute evaluation criteria set by the Defendant were 650 points, which were set by the Defendant.

D. After that, the defendant issued to the intervenors a letter of approval under Article 3(2) of the Rules of the Korea Broadcasting Commission concerning the Enforcement of the Broadcasting Act on July 30, 2001, which was approved under Article 9(3) of the Broadcasting Act.

[Evidence] A, 2, A7-1, 2, A10, 4, 5, 7, 15, 21-2, the purport of the whole pleadings

[Broadcast Act]

Article 9 (Recommendation, Permission, Approval, Registration, etc.)

(2) A person who intends to operate a CATV broadcasting business or a CATV relay broadcasting business shall obtain permission from the Minister of Information and Communication with facilities and technologies in conformity with the standards prescribed by Presidential Decree.

(3) Notwithstanding paragraph (2), where a CATV relay broadcasting business operator falling under the criteria as determined by the Presidential Decree desires to operate a CATV broadcasting business, he shall obtain approval from the Korean Broadcasting Commission.

(4) A person who has obtained approval under paragraph (3) shall be deemed to have obtained permission from a CATV broadcasting business operator under subparagraph 3 (b) of Article 2 from the time of obtaining approval.

Article 10 (Criteria and Procedures for Evaluation)

(1) When the Korea Broadcasting Commission makes a recommendation under Article 9 (1) and (2), or grants approval under Article 9 (3), (5), (6) and (8), it shall examine the following matters and publicly announce the results thereof:

1. Possibility of realizing the public responsibility, fairness and public interest of broadcasting;

2. Appropriateness of the planning, programming and production plans of broadcast programs;

3. Regional, social and cultural needs and validity;

4. Appropriateness of management plans such as the organization and manpower operation;

5. Financial and technical capability;

6. Support plans for the development of broadcasting;

7. Other matters necessary for conducting the business.

(2) The Korea Broadcasting Commission shall, in making a review under paragraph (1), listen to the viewers’ opinions publicly and publicly announce whether or not to reflect the relevant opinions.

[Enforcement Decree of the Broadcasting Act]

Article 7 (Approval for CATV Relay Broadcasting Business)

(1) A CATV relay broadcasting business operator who intends to obtain approval for a CATV broadcasting business under Article 9 (3) of the Act shall submit an application for approval, along with a plan for conversion of facilities, to the Korea Broadcasting Commission:

1. Plans for facilities conversion shall conform to the technical standards for a CATV broadcasting business under Article 79 (1) of the Act;

2. The ratio occupied by the number of subscribers for a CATV relay broadcasting business operator out of the total number of households within the CATV broadcasting business area wherein the number is located shall exceed the ratio publicly announced by the Korea Broadcasting Commission in consideration of the scope

(2) The Korea Broadcasting Commission shall, upon receipt of an application for approval under paragraph (1), examine the matters in each subparagraph of paragraphs (1) and of Article 10 (1) of the Act, and notify, after a consultation with the Minister of Information and Communication, the applicant of the relevant results within ninety days.

(3) Detailed procedures and methods necessary for granting approval for CATV broadcasting business shall be determined by the Korea Broadcasting Commission.

【Korea Broadcasting Commission Regulations Concerning the Enforcement of Broadcasting Act】

Article 3 (Application for Approval of CATV Relay Broadcasting Business)

(1) A CATV relay broadcasting business operator who intends to apply for approval for a CATV relay broadcasting business shall submit an application in attached Form 9 to the Korea Broadcasting Commission, along with a copy of a license for a CATV relay broadcasting business.

(2) Where the Korea Broadcasting Commission grants approval for a CATV broadcasting business of a CATV relay broadcasting business operator under Article 7 (1) through (3) of the Decree, it shall issue a certificate of approval in attached Form 10.

(3) Where a CATV relay broadcasting business operator obtains approval for a CATV broadcasting business under Article 7 (1) through (3) of the Decree, the valid period of permission for a CATV relay broadcasting business shall be reckoned from the date of approval. In such cases, the valid period of permission shall

2. Decision on persons subject to approval for CATV broadcasting business and administrative disposition for issuance of approval letters;

A. According to Articles 9(3) and (4) and 16 of the Broadcasting Act, Article 16(1) of the Enforcement Decree of the Broadcasting Act, and Article 3(2) and (3) of the Regulations of the Korea Broadcasting Commission related to the Enforcement of the Broadcasting Act, where a CATV relay broadcasting business operator intends to operate a CATV broadcasting business, he shall obtain the Defendant’s approval, and where the Defendant grants approval for a CATV relay broadcasting business to a CATV relay broadcasting business, he shall issue a certificate of approval, and where the person who has obtained approval is deemed to have obtained it from the time of approval, the effective period of permission shall be three years from the date of approval, and the effective period of permission for a CATV relay broadcasting business shall be deemed to have expired from the date of approval. Even if a CATV relay broadcasting business operator is determined to be subject to approval for a CATV relay broadcasting business, it remains as it remains as a CATV relay broadcasting business operator until the Defendant received a certificate of approval from the Defendant, and only at that time, it constitutes an administrative disposition with the nature of approval for a CATV relay broadcasting business.

B. Meanwhile, Article 7 (2) of the Enforcement Decree of the Broadcasting Act provides that "the Korea Broadcasting Commission shall, upon receipt of an application for approval under paragraph (1), examine the matters of each subparagraph of paragraph (1) and each subparagraph of Article 10 (1) of the Act, and notify the applicant of the result within 90 days after consultation with the Minister of Information and Communication." The defendant expresses that the application for approval based on the above provisions is "approval of a business operator" and announces that one business operator shall be determined in each broadcast area along with absolute evaluation and relative evaluation. The defendant promises to issue a letter of approval if the business operator determined to be approved performs the matters stipulated in the notice within the deadline of registration of incorporation of the corporation, payment of capital, and submission of a letter of request for approval. Thus, the business operator determined as a CATV broadcasting business operator has no fixed position as a CATV broadcasting business operator but to be a legal position that can become a CATV broadcasting business operator. Such legal status of the business operator subject to approval should also be different from the defendant's legal status of the applicant subject to approval, and thus, the defendant's legal status should not be affected by the decision.

[Broadcast Act]

Article 2 (Definitions) The definitions of terms used in this Act shall be as follows:

1. The term "broadcasting" means planning, programming or producing broadcast programs, and transmitting them to the general public (including the recipients under individual contracts; hereinafter referred to as "Viewers") through telecommunication facilities, and falling under any of the following items:

(b) CATV broadcasting: Multi-channel broadcasting using transmission and line facilities;

2. The term "broadcasting business" means the business of conducting broadcasts which falls under the following items:

(b) CATV broadcasting business: A business of managing and operating CATV broadcasting stations (referring to the whole of facilities and employees for conducting CATV broadcasting; hereinafter the same shall apply), and of conducting CATV broadcasting;

3. The term "broadcasting business operator" means any of the following persons:

(b) CATV broadcasting business operator: A person who has obtained a license under Article 9 (2) for operating a CATV broadcasting business; and

4. The term "CATV relay broadcasting" means receiving and relaytransmitting (including the audio and video recordings which do not alter any broadcast programming) terrestrial broadcasts, satellite broadcasts conducted by the Korean Broadcasting System under this Act and by a broadcasting business operator established under the Special Act, or broadcasts as prescribed by the Presidential Decree;

5. The term "CATV relay broadcasting business" means a business of conducting CATV relay broadcasts;

6. The term "CATV relay broadcasting business operator" means a person who has obtained a license under Article 9 (2) for operating a CATV relay broadcasting business;

Article 16 (Valid Term of License and Approval)

Valid term of the license or authorization for a CATV broadcasting business and a CATV relay broadcasting business licensed under the provisions of Article 9 (2), and a program providing business approved under the provisions of the proviso of Article 9 (5) shall be prescribed by the Presidential Decree within the limit not exceeding five years.

[Enforcement Decree of the Broadcasting Act]

Article 16 (Renewal of License, etc.)

(1) Valid term of a license and authorization under Article 16 of the Act shall be three years.

3. Examination on the CATV relay broadcasting business approval system for CATV relay broadcasting business operators;

(a) Details of the establishment of a system;

(1) The Act on the Management of Cable Broadcasting was enacted on August 24, 1961 for the purpose of resolving the poor reception area of radio terrestrial broadcasting. The cable broadcasting was introduced on December 31, 1991 with a view to responding to the significant changes in the global broadcasting environment following the development of new media technology, such as cable costs and multimedia, and with a view to preparing for cultural invasion by Japan and Hong Kong’s satellite broadcasting, the Cable Broadcasting Act was enacted on December 31, 191.

(2) However, as the laws and regulations on CATV broadcasting business and CATV relay broadcasting business are dualised, and the business operators are difficult to establish, side effects such as the disturbance of market order, duplication of investment with respect to the transmission network, and the establishment of CATV broadcasting have been deepened due to excessive competition among the business operators, the government formed a Broadcasting Reform Committee to review the entire broadcasting policies.

(3) On February 199, the Broadcasting Reform Committee presented the unification of the laws and regulations and the regulatory periods and the integration of both businesses as a solution to the above problems. In this case, the step-by-step plan was claimed for the integration of both businesses. The step 1 set a grace period for each broadcasting zone and then granted the qualification of a CATV relay broadcasting business operator to a CATV relay broadcasting business operator within the same broadcasting zone, and the step 2 was based on the premise that multiple CATV relay broadcasting business operators are merged within the same broadcasting zone.

(4) On January 12, 200, the former Broadcasting Act and the Composite Cable Broadcasting Act were repealed and the Broadcasting Act were enacted, and the relevant laws and regulatory agencies related to both projects were unified. Article 9(3) of the Broadcasting Act was newly established for the CATV relay broadcasting business approval system for the CATV relay broadcasting business. Accordingly, the Defendant implemented the above approval system (hereinafter referred to as the “approval system of this case”) in order to recognize additional CATV relay broadcasting business operators in addition to the existing CATV relay broadcasting business operators by granting approval to one CATV relay broadcasting business operator among the CATV relay relay broadcasting business operators within each CATV relay broadcasting business area in the first stage of integration plan for both projects.

[Evidence] A26, the purport of the whole argument

B. The defendant's position on the recognition system of this case

On November 23, 200, the defendant held a hearing for approving a CATV broadcasting business of relay relay relay cable broadcasting and expressed that "a hearing for approving a CATV broadcasting business" of this case has the meaning of the approval system of this case to "a competent CATV relay broadcasting business operator shall improve the consumption competition structure of cable relay broadcasting, create the foundation for the market integration of cable relay broadcasting, expand the opportunity for cable relay broadcasting and enhance the quality of the service as a result of expanding the opportunity for watching cable relay broadcasting." On January 3, 2001, the defendant held an explanatory meeting for approving the approval system of this case to "the purpose of promoting the cable relay business by expanding the opportunity for watching cable relay broadcasting through the approval of the competent CATV relay broadcasting business operator, and by building the foundation for the market integration of cable relay broadcasting." Accordingly, the defendant tried to approve the basic direction for examining the approval system of this case in compliance with the criteria for review specified in Article 10 (1) of the Broadcasting Act, and to achieve the goals of the approval system of this case."

[Evidence] 1, 2, the purport of the whole argument

C. The fundamental purport of the recognition system of this case

Examining the developments leading up to the establishment of the approval system of this case and the defendant's position and relevant statutes, the fundamental purpose of the approval system of this case is to promote the activation of cable service industry by providing multiple CATV broadcasting business operators with existing ability CATV relay broadcasting business operators with the qualification of CATV broadcasting business operators within the same broadcasting zone, and by expanding opportunities for watching cable costs through fair competition among them, and inducing relay cable broadcasting and relay cable broadcasting to integrate markets.

4. Whether the approval and disposition of this case and the refusal disposition of approval are legitimate

A. The parties' assertion

The Plaintiff asserted that, as the existing cable broadcasting business operator of the instant broadcast area, the Plaintiff received the Intervenor and held 100% of its shares around June 199 as the Plaintiff’s existing cable broadcasting business operator around March 15, 2002, and held two cable broadcasting businesses in the same broadcast area. In such a situation, the Defendant’s granting the instant approval to the Intervenor does not differ from granting two cable broadcasting businesses rights to one identical broadcast business operator in the same broadcast area. Therefore, the Plaintiff granted a license to the existing cable broadcasting business operator and recognized multiple cable broadcasting businesses within the same broadcast area against the fundamental purpose of the instant approval system, and thus, the Plaintiff issued the instant approval refusal disposition and the instant refusal disposition should be revoked in all unlawful manner.

As to this, the defendant and the intervenor asserted that even though the future cable holds a certain part of the intervenor's shares, as long as such shares are not prohibited by the Broadcasting Act, the approval disposition of this case is not unlawful against the fundamental purpose of the approval system of this case.

B. Facts of recognition

(1) 미래케이블은 서울 강북·도봉 방송구역에서 종합유선방송사업을 영위하고 있는 종합유선방송사업자인데, 1999. 6.경 같은 방송구역에서 중계유선방송사업을 영위하고 있던 참가인을 인수하였고, 2000. 5.경 같은 중계유선방송사업자인 주식회사 큐릭스네트웍스(이하 '큐릭스네트웍스'라고 한다)에 상당한 자본을 출자하여 그의 주식 89.7%를 보유하고 있었다.

(2) 참가인은 2001. 2. 10. 피고에게 이 사건 승인신청을 하면서, 그 당시 미래케이블이 참가인의 주식 600,000주 전부를 보유하고 있었음에도 이 사건 승인신청서와 함께 제출한 참가인의 사업계획서에 미래케이블이 참가인의 주식 95%를, 주식회사 KCC정보통신(이하 'KCC'라고 한다)이 참가인의 주식 5%를 보유하고 있는 것으로 기재하는 한편, 종합유선방송사업 승인을 받을 경우에는 유상증자를 통하여 미래케이블이 참가인의 주식 85%를, 큐릭스네트웍스가 참가인의 주식 10%를, KCC가 참가인의 주식 5%를 보유하는 것으로 변경하는 것으로 기재하였다. 그 후 위와 같은 사업계획서 내용대로 KCC는 2001. 2. 21. 주금 198,947,000원을 납입하고 참가인이 유상증자한 주식 31,579주를 인수하여 참가인의 주식 5%{31,579주/631,579주(600,000주+31,579주)}를 보유하게 되었고, 참가인이 종합유선방송사업 승인대상자로 결정된 후인 2001. 6. 18.에는 미래케이블이 1,950,357,538원의 주금을, 큐릭스네트웍스가 1,699,650,543원의 주금을, KCC가 192,096,919원의 주금을 각 납입하여 참가인이 유상증자한 주식 184,468주 중 미래케이블이 93,641주를, 큐릭스네트웍스가 81,604주를, KCC가 9,233주를 각 인수한 결과 미래케이블이 참가인의 주식 85%{693,641주/816,047주(631,579주+184,468주)}를, 큐릭스네트웍스가 참가인의 주식 10%{81,604주/816,047주(631,579주+184,468주)}를, KCC가 참가인의 주식 5%{40,812주/816,047주(631,579주+184,468주)}를 각 보유하게 되었다.

(3) 참가인의 이 사건 승인신청 전후의 참가인, 미래케이블 및 큐릭스네트웍스의 임원구성을 살펴보면, 참가인의 경우에는 대표이사 이덕선, 이사 원재연, 박건호, 이봉규로 구성되어 있었고, 미래케이블의 경우에는 대표이사 원재연, 이사 이덕선, 최성로로 구성되어 있었으며, 큐릭스네트웍스의 경우에는 대표이사 원재연, 이사 이덕선, 문진환으로 구성되어 있어서, 원재연과 이덕선은 위 각 방송회사의 대표이사 또는 이사로 항상 참여하여 그 경영에 관여하고 있었고, 한편 미래케이블은 자신의 회사소개를 통하여 참가인이 자신의 자회사라고 선전하면서 2001. 4. 30. 종합유선방송사업 승인대상자로 결정되어 종합유선방송사업자로 전환되었다고 광고하였다.

(4) At the time of the instant application for approval, the Intervenor planned to install a composite cable broadcasting station in order to jointly use the cable broadcasting station facilities, such as the main transmission device, within the scope of the Intervenor’s main office at the time of the instant application. However, on June 19, 2001, the Intervenor’s representative director, who was determined to be subject to approval for a CATV broadcasting business, may expect efficiency in the management of the Intervenor’s representative director’s holding concurrent office as a director of a future cable, and ② there is no difficulty in organizing the cable; ③ there is no difficulty in managing the cable because the Intervenor and the future cable are located in the same broadcasting zone; ④ there is no difficulty in minimizing the unnecessary investment expenditure through the integrated management; ④ It is possible to operate the cable efficiently; accordingly, the Intervenor applied for a change in the business plan to allow the Defendant to jointly use the future cable facilities; and accordingly, the Intervenor received the approval from the head of the relevant agency after changing the location of the main office of the relevant agency from the Defendant to the future cable and the subsequent application for the approval of the completion certificate.

(5) Meanwhile, at the time of the Intervenor’s application for the approval of the instant case, the Defendant and the Minister of Information and Communication made it possible for a CATV broadcasting business operator and a CATV relay broadcasting business operator to mutually use transmission and line facilities pursuant to Article 79(3) of the Broadcasting Act, so that a CATV broadcasting business operator can transmit the CATV broadcasting to its subscribers through relay relay cable broadcasting facilities, and all the intervenors and future cables were aware of such fact.

(6) Since the Intervenor’s acquisition of future cables, the Intervenor retransmittings future cables through its transmission and line facilities, and even after the Defendant’s conversion into a CATV broadcasting business entity upon the instant approval, the Intervenor jointly uses future cables and cable broadcasting station facilities and transmits most of the same cable broadcasting as future cables through its transmission and line equipment.

[Evidence] A, 4, A8-2, 3, 4, 5, 6 (part 3 of 3), A9, 10, 11, 12, 13, A14-1, 2, A16-3, 4, A16-5 (=A20-6), A18, A20-5, A21-2, 4, 5, 6, 8, 11, 12, A24, 25, 29, 32-3, 10-1 ( part of 3), 10-2, 10-2, 10-3, 14-4, 15, 16-1, 27, 21-4, 32, and 10-1 ( part of 3), and 10-2, 10-3, 14-14, 15, 16-1, 21, 31-4, 27

C. Determination

The Defendant’s approval disposition is an authorized administrative act that grants a CATV relay broadcasting business operator the right to engage in CATV relay broadcasting business, and has broad discretion within a reasonable scope in choosing the method and procedure for approving such CATV relay broadcasting business operator. However, as seen earlier, the fundamental purpose of the approval system is to recognize multiple CATV relay broadcasting business operators within the same broadcasting zone by granting a license to engage in CATV relay broadcasting business operators, and to promote the activation of the cable relay industry by promoting fair competition among them. Meanwhile, even if the Defendant grants a wide discretion in selecting CATV relay broadcasting business operators, if it is intended to select a business operator in accordance with the above criteria by publicly announcing a certain criteria for selection in advance, it would be difficult for the Defendant to exercise its discretionary power on the selection of the business operator, and on the other hand, it would be in line with the purpose of the approval system, which would make it difficult for the Defendant to establish the basic direction of the examination of the cable relay broadcasting business operator in accordance with the aforementioned criteria, and thus, would be in line with the purpose of the approval system.

살피건대, 앞서 본 바와 같이 참가인은 이 사건 승인신청 당시 미래케이블에 의하여 자신의 주식 전부를 보유당하고 있었을 뿐만 아니라 그 후 KCC와 큐릭스네트웍스가 참가인의 유상증자한 주식 일부를 인수한 후에도 미래케이블에 의하여 자신의 주식 85%를 보유당하고 있었고(한편, 큐릭스네트웍스가 미래케이블의 자회사에 불과한 점을 감안하면 실제로는 미래케이블에 의하여 자신의 주식 95%를 보유당하고 있었다), 자신의 임원 중 대표이사 이덕선과 이사 원재연이 미래케이블의 임원을 겸임하고 있었는바, 이에 의하면 결국 참가인은 그 자본뿐만 아니라 인적 구성에 있어서도 미래케이블에 의하여 완전히 지배당하고 있었던 것으로 보이는 점, 종합유선방송국설비는 종합유선방송을 편성·운행·송출하기 위하여 종합유선방송국 안에 설치하는 주전송장치 등을 말하는 것으로서 종합유선방송사업을 영위하기 위한 핵심적인 시설에 해당하고, 그러한 이유에서 참가인은 이 사건 승인신청 당시 독립적인 종합유선방송국설비를 구축하는 것으로 사업계획서를 작성하였다가, 이 사건 승인대상자 결정처분 이후 미래케이블과의 지배종속관계를 고려하여 피고에게 미래케이블의 종합유선방송국설비를 공동사용하는 것으로 허가하여 줄 것을 신청하여 피고로부터 미래케이블과 종합유선방송국설비를 공동사용하는 것으로 승인장을 교부받은 점, 참가인은 미래케이블에게 인수당한 이래 미래케이블의 종합유선방송을 그대로 재송출하고 있었는데, 이 사건 승인처분 이후에도 위와 같이 미래케이블의 종합유선방송국설비를 공동사용하게 됨에 따라 자신의 전송·선로장비를 통하여 미래케이블과 대부분 동일한 종합유선방송을 송출할 수밖에 없었던 점, 참가인은 피고로부터 이 사건 승인처분을 받지 않더라도 미래케이블과의 합병절차를 거치거나 자신의 전송·선로장비를 통하여 미래케이블의 종합유선방송을 그대로 재송출하는 데 아무런 법적 장애가 없었던 점 등을 종합하여 보면, 참가인은 이 사건 승인신청 당시뿐만 아니라 이 사건 승인처분 당시에도 독립적인 중계유선방송사업자로서의 지위에 있었던 것이 아니라 자본, 인적 구성 및 유선방송의 편성·운행·송출 등 모든 측면에 있어 미래케이블에 의하여 완전히 지배당하고 있어 그와 주종관계를 형성하고 있었고, 그로 인하여 참가인에게 종합유선방송사업의 승인을 하여 준다 하더라도 미래케이블과 대등한 종합유선방송사업자로서 공정한 경쟁을 통하여 위에서 본 바와 같은 이 사건 승인제도의 목적을 달성할 수 있는 기대가능성이 전혀 없었던 것으로 보이고, 결국 참가인을 '유선방송 시장통합의 기반조성에 부합하는 사업자', '종합유선방송산업의 활성화 및 관련시설투자가 가능한 사업자' 또는 방송법 제10조 제1항 제3호 가 규정하는 '지역적·사회적·문화적 필요성과 타당성'이라는 기준을 충족시키는 신청인이라고 보기는 어렵다 할 것이다.

Therefore, in this case where the defendant's basic direction of the approval review is clearly recognized as not to be qualified as the intervenor's person eligible for approval, even if the intervenor received a higher evaluation score than the plaintiff with respect to each item of the detailed criteria set by the defendant, the detailed criteria set by the defendant are determined significantly beyond the above basic direction of the approval review, or the evaluation of each item is considerably lost its validity, and thus, the decision of this case against the intervenor is unlawful. Accordingly, the defendant's approval disposition of this case against the plaintiff is also illegal, and thus, the defendant's refusal disposition of approval of this case against the plaintiff shall not be exempted from the illegality.

5. Judgment on the Intervenor’s assertion

A. As to the assertion on restrictions on cancellation of beneficial administrative disposition

(1) Intervenor's assertion

The intervenor, after the approval disposition of this case, invested more than 6 billion won in money from investors, secured more than 40,000 households of composite cable broadcasting, and formed a lot of contractual relationships (such as program supply contracts, transmission network interpretation contracts, broadcasting facility contracts, etc.) premised on composite cable broadcasting. If the approval disposition of this case is revoked, the intervenor would suffer disadvantages such as the above acquisition right, protection of trust and stability of legal life. Accordingly, the above disadvantage to be suffered by the intervenor due to the cancellation of the approval disposition of this case is difficult to cope with this, while there is no need for public interest to cancel the approval disposition of this case, and therefore, it cannot be revoked even if the approval disposition of this case is unlawful.

(2) Determination

On the other hand, when several persons who applied for the approval of this case, such as the approval of this case, have no choice to obtain the approval of one party by non-approval of the other party, the person who did not obtain the approval can seek the cancellation of the approval of this case even though they were not the other party to the approval of this case. According to these legal principles, the plaintiff filed a lawsuit of this case on June 9, 2001, after the defendant's decision of approval of this case against the intervenor, under the premise that the disposition of this case was illegal, which was after the defendant's decision of approval of this case, on the premise that the plaintiff was illegal, the intervenor could have anticipated the disadvantage due to the cancellation of the approval of this case, and formed facts and legal relations based on the approval disposition of this case under the anticipated disadvantage. Thus, the cancellation of the approval disposition of this case is different from the cancellation of ordinary beneficial administrative disposition of this case, and if the intervenor's above disadvantage was not revoked due to the cancellation of the approval disposition of this case as alleged by the intervenor, it cannot be viewed as the basis of the previous cable broadcasting market's interest.

B. As to the assertion on the principle of trust protection

(1) Intervenor's assertion

The Intervenor asserts that the Intervenor’s trust should be protected because the Intervenor trusted the instant approval disposition, thereby inducing investment in the CATV broadcasting business, securing subscribers to the CATV broadcasting business, and establishing a contractual relationship premised on the CATV broadcasting business. Thus, the Intervenor’s trust should not be revoked even if the instant approval disposition is unlawful.

(2) Determination

As seen earlier, by filing a lawsuit in this case seeking revocation on the premise that the approval disposition of this case is illegal, the intervenor could have predicted disadvantages arising from the revocation of the approval disposition of this case since that time, and formed facts and legal relations based on the approval disposition of this case under the presumption of such disadvantages. As such, there is no room for applying the principle of trust protection to ordinary administrative disposition in relation to the revocation of the approval disposition of this case. Thus, the intervenor's assertion is without merit.

6. Conclusion

Therefore, without examining the remaining arguments of the plaintiff, the approval disposition of this case against the plaintiff and the refusal disposition of this case against the plaintiff are all unlawful. Thus, the plaintiff's claim of this case seeking its revocation is justified and it is so decided as per Disposition by the assent of all.

Judges Kim Chang-suk (Presiding Judge)