2015Nu3742 Demanding the revocation of sanctions against broadcasting deliberation

○○ Co., Ltd.

Law Firm ○○, Counsel for the defendant-appellant

Attorney OOO, OO, OO,O,OO

Korea Communications Commission

Law Firm ○○, Counsel for the defendant-appellant

○○, ○○, ○○

OO,OO of the litigation performer

Seoul Administrative Court Decision 2014Guhap64940 decided February 5, 2015

October 22, 2015

November 19, 2015

1.The judgment of the first instance shall be modified as follows:

A. The part concerning an order to notify broadcasting among the instant lawsuit is dismissed.

B. The plaintiff's remaining claims are dismissed.

2. All costs of the lawsuit shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The defendant's disciplinary action against the plaintiff on May 12, 2014 (00)

Measures for Discipline and Warning against Persons Related to 000 Programs and Sanctions against the Defendant by the Plaintiff

Measures to revoke an order to make a notification broadcast that was received shall be revoked.

1. Details of the disposition;

The reasoning for this Court’s explanation is as follows: (a) the corresponding part of the judgment of the court of first instance is identical to that of the corresponding part of the judgment of the court of first instance (from 6 to 3, 18, 16 to 24, 16 to 24, hereinafter referred to as “the developments leading up to the disposition”); and (b) thus, it shall be cited in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act

○○ Decision 2.28 February 28, 2013, “The second part” in the second part of the judgment of the first instance.

○ The second instance judgment No. 16-17 of the first instance court’s order (the sum of the above dispositions hereinafter referred to as “instant disposition”). “The part was ordered (the sum of the above dispositions hereinafter referred to as “the instant order”).” “In addition, each of the instant dispositions described between the third, fifth, and fourteen and nine pages 19 of the first instance court’s decision, respectively, refers to “the instant order.”

2. Ex officio determination on the part of a notice broadcasting order

A. Relevant legal principles

The term "administrative disposition", which is the object of an appeal litigation, means an act under public law of an administrative agency, which causes direct change in the legal status of the other party or other persons concerned, such as ordering the establishment of rights or the burden of obligations under Acts and subordinate statutes, or causing other legal effects on a specific matter. Barring special circumstances, an act that does not cause direct legal change in the legal status of the other party or other persons concerned, such as the act of non-power fact, such as the recommendation by an administrative agency or administrative guidance, shall not be subject to appeal litigation (see Supreme Court Decisions 95Nu909, Nov. 21, 1995; 2003Du10312, Feb. 17, 2005, etc.).

In addition, the issue of whether an administrative agency's act is deemed an administrative disposition cannot be determined abstract, general, and in specific cases, an administrative disposition is an enforcement of law with regard to specific facts conducted by an administrative agency as a public authority, which directly affects the rights and obligations of the people. In view of the content and purport of the relevant Acts and subordinate statutes and whether the act satisfies the requirements of establishment or validity as an administrative disposition to a certain extent in the subject, contents, form, procedure, etc. of the relevant Acts and subordinate statutes, substantial relation between the act and the disadvantage suffered by interested parties such as the other party, and the principle of administration by the rule of law and the attitude of the administrative agency and interested parties related to the pertinent act, etc. (see Supreme Court Decision 2010Du7321, Jun. 10, 201).

B. Determination

In light of the above legal principles, as seen earlier, the following contents of the relevant statutes, the content and form of the instant decision, the actual relation between the disadvantage of the interested parties such as the Plaintiff, etc., and the Defendant’s intent and attitude of the interested parties, etc., the notice broadcasting order merely constitutes a non-power factual act with the effect of recommendation, and even if considering the evidence submitted by the Plaintiff and the circumstances of its assertion, it cannot be deemed as an administrative disposition that directly causes legal change in the legal status of the Plaintiff who can be subject to appeal litigation. Ultimately, the lawsuit on the part of the notice broadcasting order in the lawsuit in the lawsuit in this case is unlawful (i) as to the Plaintiff’s assertion as to the illegality of the notice broadcasting order, and (ii) Article 100(4) of the Broadcasting Act provides that the service provider, etc., without delay, shall be deemed as having any influence on the Plaintiff’s legal relations, and thus, the Defendant’s order cannot be deemed as being subject to the above notice order, as well as the Defendant’s obligation to notify the broadcasting business entity.

2) Article 108(1)27 of the Broadcasting Act provides that a broadcasting business entity shall be subject to an administrative fine in the event that the broadcasting business entity fails to comply with the above notification obligation. However, this is merely interpreted as a sanction on failure to perform the notification obligation itself under Article 100(4) of the Broadcasting Act, and it cannot be deemed a sanction on the performance of the notification obligation in a manner different from that of the Defendant’s determination and notification. In other words, the Broadcasting Act provides a direct sanction or legal disadvantage on the performance of the notification obligation in a way different from that of the Defendant’s determination and notification.

It does not seem to be visible.

3) In addition, according to Article 100 of the Broadcasting Act, the defendant's order to take a disciplinary measure is provided with an opportunity to state his opinion in advance (paragraph (5)), and the defendant's order to review (paragraph (6) does not have any provision regarding the procedure for remedy as to the order to notify a broadcast ordered by the defendant. In addition, according to the decision of this case (No. 1) of this case, the defendant ordered the plaintiff to provide a broadcast in the same manner as the stated in Paragraph (2) of this case, but "the method and period of raising an objection" of the above decision stated that it is possible to request review only against the order to take a disciplinary measure, and the situation without mentioning the method of objection is seen to be included in Article 100 (4) of the Broadcasting Act, the defendant's order is not intended to directly impose the obligation to notify the plaintiff through the order to notify a broadcast, but rather, under the premise that the plaintiff's order to notify the plaintiff's specific contents and methods necessary for implementing the obligation to notify the plaintiff's obligation to notify the broadcast.

It can be sufficiently disputed whether or not the defendant is able to bring an unfavorable measure against the plaintiff on the ground that the defendant did not comply with the notice broadcasting order, even if the plaintiff is able to bring an action against the disadvantage of the plaintiff, and it seems that the plaintiff can bring an action against the violation of the plaintiff's legal status. Therefore, in this case, the defendant seems not to have a great

5) Furthermore, although the Defendant merely notifies the Plaintiff of the content of Article 100(4) of the Broadcasting Act through the broadcast order, rather than merely notifies the Plaintiff of the content of the broadcast order, it is ordered to implement matters that are not the Plaintiff’s obligation. However, if it is determined that the content and method of the broadcast order determined and notified by the Defendant is unreasonable, it is deemed that the Plaintiff can broadcast the full text of the decision pursuant to Article 100(4) of the Broadcasting Act without complying with it, and insofar as it appears that the order itself does not in itself have any legal effect or legal apprehension that may cause direct change in the Plaintiff’s rights and obligations. Therefore, even if the above order leads to unstable fear that the Plaintiff may suffer disadvantages that may have an impact on the Plaintiff’s rights

3. Determination on the merits regarding the order of disciplinary measures among the instant decision

The reasoning for this Court’s explanation is as follows. This part of this Court’s reasoning is as follows: (a) it is identical to the description in Articles 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act, since it is the same from 20 to 14, and the last 25 to 27, respectively.

Parts of an appeal shall be the same.

○ The 7th judgment of the first instance court is in accordance with the provision of the 17th judgment of the court of first instance, and "the part of the grounds for certification" is "the grounds for recognition".

○ 10th 18th 10th 10th 18th 10th 18th 10th 19th 10th 10th 10th 10th 196.

○ It can be understood that a report is made in accordance with § 13 of the 11st judgment of the first instance court. The part can be understood as a "report".

○ The third part of the 13th judgment of the first instance court, "if any, the parts" are "o, the 7th part "as it exists", and the 10th "Violation of the Act on the Protection and Settlement Support of Residents escaping from North Korea and the 10th part" are "the violation of the Act on the Protection and Settlement Support of Residents escaping from North Korea and the 3rd part", respectively.

○ In Part 17 of the 14th judgment of the first instance court, the term "influence of the appearance" means "influence of the part".

4. Conclusion

Therefore, the part concerning the notice broadcasting order among the lawsuit of this case is unlawful and dismissed, and the plaintiff's claim seeking the revocation of the sanction order shall be dismissed as it is without merit. Since the judgment of the court of first instance differs from this part, it is so decided as per Disposition by changing the judgment of the court of first instance.

Judges - Judges in fixed form

Judges Gangseo-gu

Judges Nam-yang