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(영문) 대법원 2009. 2. 26. 선고 2006두16243 판결
[골프장회원권모집계획승인처분취소][공2009상,423]
Main Issues

[1] The legal nature of the submission of a membership recruitment plan by a person intending to recruit members of a sports facility and the notification of the results of the examination by a Mayor/Do Governor

[2] Whether the so-called deposit membership golf course has a legal interest to seek revocation of the notification of the results of the examination by the Mayor/Do Governor on the membership recruitment plan submitted by the sports facility business entity (affirmative)

Summary of Judgment

[1] According to Article 19(1) of the former Installation and Utilization of Sports Facilities Act (amended by Act No. 7428 of Mar. 31, 2005), Article 18(2)1(a) and Article 18-2(1) of the former Enforcement Decree of the Installation and Utilization of Sports Facilities Act (amended by Presidential Decree No. 19686 of Sep. 22, 2006), a person who intends to recruit members of a sports facility pursuant to Article 19 of the same Act shall be deemed to be entitled to recruit members after being notified by the Mayor/Do Governor, etc. of the results of a review on a plan for the recruitment of members. Accordingly, the submission of a plan for the recruitment of members of a sports facility by the Mayor/Do Governor, etc. of a person who intends to recruit members of a sports facility constitutes a report requiring acceptance, and notification of the results of a review by the Mayor/Do Governor, etc. constitutes an administrative disposition as a repair act.

[2] With respect to notification as an administrative disposition, a third party, who is not the other party, is deemed to have standing to sue if there is a legal interest in seeking revocation thereof even if there is a legal interest in seeking such revocation. In such a case, a member who is equivalent to the qualification standards set by the company, who has obtained approval for a membership, pays a certain amount of admission fee and uses the facilities designated by the company, and the company shall pay the fees determined by the company when the member uses the facilities designated by the company, and if the sports facility business entity or the person who has obtained approval for the business plan submits a membership recruitment plan, and is notified of the result of the examination by the Mayor/Do Governor, etc., by submitting a membership recruitment plan along with a letter of confirmation of installation process of false business facilities or submission of a membership recruitment plan to recruit members exceeding the expected number of persons determined by the business plan, this would affect the legal status of existing

[Reference Provisions]

[1] Article 19(1) and (3) of the former Installation and Utilization of Sports Facilities Act (amended by Act No. 7428 of Mar. 31, 2005); Article 18(2)1 Item (a), and Article 18-2 of the former Enforcement Decree of the Installation and Utilization of Sports Facilities Act (amended by Presidential Decree No. 19686 of Sep. 22, 2006) / [2] Article 12 of the Administrative Litigation Act

Plaintiff-Appellant

Plaintiff (Law Firm Young-soo, Attorneys Lee Jae-soo et al., Counsel for the plaintiff-appellant)

Defendant-Appellee

Do Governor of Chungcheongbuk-do

Intervenor joining the Defendant

Defendant Intervenor (Attorney Cho Jae-chul, Counsel for the defendant-appellant)

Judgment of the lower court

Daejeon High Court Decision 2006Nu93 decided September 21, 2006

Text

The appeal is dismissed. The costs of appeal are assessed against the Plaintiff, including the part resulting from supplementary participation.

Reasons

We examine the grounds of appeal.

Article 19(1) of the former Installation and Utilization of Sports Facilities Act (amended by Act No. 7428, Mar. 31, 2005; hereinafter referred to as the "former Act") provides that "sports facility business operators or any person who has obtained approval of such business plan may recruit members, and where they intend to recruit members, they shall prepare and submit a membership recruitment plan to the Mayor/Do Governor or the head of Si/Gun/Gu (limited to the head of autonomous Gu; hereinafter the same shall apply) no later than 15 days prior to the commencement date of membership recruitment," and Article 18(2)1 (a) of the former Enforcement Decree of the Act (amended by Presidential Decree No. 19686, Sep. 22, 2006; hereinafter referred to as "the head of the Gun/Gu shall submit a membership recruitment plan to the head of the Gun/Gu within the scope of the registered sports facility business or the head of the Gun/Gu who intends to newly recruit members pursuant to Article 18-2(1) of the Act.

According to these regulations, it is reasonable to view that a person who intends to recruit members of a sports facility pursuant to Article 19 of the former Act can recruit members after being notified of the results of the review on the member recruitment plan by the Mayor/Do Governor, etc. Therefore, the submission of a member recruitment plan to the Mayor/Do Governor, etc. of a person who intends to recruit members of a sports facility constitutes a report requiring acceptance at the report requiring acceptance. The notification of the results of the review by the Mayor/Do Governor

On the other hand, notification as an administrative disposition is recognized as standing to sue if a third party, other than the other party, has a legal interest in seeking its revocation even if there is a legal interest in seeking such revocation. In such a case, if a member who is equivalent to the qualification requirements determined by the company, pays a certain amount of admission fee and uses the facilities designated by the company, he/she shall pay the fees determined by the company, and the company is in the so-called deposit membership golf course, such as the non-party 1 corporation (hereinafter “the instant golf club”), which stipulates that the membership fee shall be repaid five years after the submission of a membership recruitment plan, and if the sports facility business operator or the person who has obtained approval of the business plan submits a membership recruitment plan, and receives a notice of the result of the examination by the Mayor/Do Governor, etc., of the submission of a false confirmation certificate of the establishment of business facilities or a membership recruitment plan with the contents of which exceeds the expected number of persons determined when obtaining the approval of the business plan, the existing member shall be deemed to have a legal interest

The court below's determination that the existing members of a membership golf course had no legal interest in seeking revocation of notification of the results of the review by the Mayor/Do Governor on the member recruitment plan is erroneous. However, in light of the records, the court below's determination that there is no evidence that the plaintiff or non-party 2 had lawfully acquired the status of members of the golf club of this case in addition determination, and therefore, the plaintiff has no legal interest in seeking revocation of notification of the result of the review by the defendant on the member recruitment plan of this case, barring any special circumstance. Thus, the court below's determination that rejected the plaintiff's assertion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party, including the portion arising from the participation in the appeal. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Si-hwan (Presiding Justice)

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관련문헌

- 최선웅 최근 행정관련판례 동향 행정법연구 24호 / 행정법이론실무학회 2009

- 이영진 납골당설치신고 반려처분 취소판결 후 재반려처분의 적법 여부 : - 서울행정법원 2009. 10. 9. 선고 2007구합21945 판결 등과 관련하여 - 성균관법학 제29권 제3호 / 법학연구원 2017

- 문상배 출원에 의한 인허가 및 그 유사 행정행위에 있어서의 위계에 의한 공무집행방해죄의 적용범위 : 대법원 2016. 1. 28. 선고 2015도17297 판결을 중심으로 판례연구 28집 / 부산판례연구회 2017

- 김철용 2009년도 행정법학계와 판례의 동향 고시계 55권 2호 / 국가고시학회 2010

- 사법연수원 행정소송법: 2016 사법연수원 2016

- 한국. 대법원 법원행정처 법원실무제요. [5-1]:. 행정 법원행정처 2016

- 김용섭 원격평생교육시설 신고 및 그 수리거부 행정판례연구 17-2집 / 박영사 2012

- 김용섭 2009년 행정법 중요 판례 인권과 정의 403호 / 대한변호사협회 2010

- 홍준형 사인의 공법행위로서 신고에 대한 고찰 : 자기완결적 신고와 수리를 요하는 신고에 관한 대법원판례를 중심으로 . 공법연구 40집 4호 / 한국공법학회 2012

참조조문

- [1] 체육시설의설치·이용에관한법률(구) 제19조 제1항

- 체육시설의설치·이용에관한법률(구) 제19조 제3항

- 체육시설의설치·이용에관한법률시행령(구) 제18조 제2항 제1호

- 체육시설의설치·이용에관한법률시행령(구) 제18조의2

- [2] 행정소송법 제12조 (위헌조문)

본문참조조문

- 체육시설의설치·이용에관한법률(구) 제19조 제1항

- 체육시설의설치·이용에관한법률(구) 제19조 제3항

- 체육시설의설치·이용에관한법률시행령(구) 제18조 제2항 제1호

- 체육시설의설치·이용에관한법률시행령(구) 제18조의2 제1항

- 체육시설의설치·이용에관한법률시행령(구) 제18조의2 제2항

- 체육시설의설치·이용에관한법률시행령(구) 제18조의2 제1항

- 체육시설의설치·이용에관한법률시행령(구) 제18조의2 제4항

- 체육시설의설치·이용에관한법률시행령(구) 제18조의2 제1항

- 체육시설의설치·이용에관한법률(구) 제19조

원심판결

- 대전고법 2006. 9. 21. 선고 2006누93 판결