(영문) 창원지방법원 2013.5.28. 선고 2012구합4249 판결

In September 19, 2012, the revocation of the approval for the establishment of a start-up business plan (factory establishment) granted by the Defendant to the Plaintiff is revoked.

Reasons

1. Details of the disposition;

A. On March 21, 2008, the Plaintiff applied for the approval of the business start-up business plan for the above business (hereinafter referred to as the “instant business plan”) to the Defendant on March 21, 2008 for the purpose of engaging in the manufacturing of vessel components by constructing a factory on the land outside Gyeong-gun B and 26 parcels, Gyeongnam-gun, Gyeongnam-gun, and the Defendant approved the instant business plan in accordance with Article 33 of the Support for Small and Medium Enterprise Establishment Act.

B. On April 8, 201, the Plaintiff did not undertake a new factory construction work under the instant business plan, and the Defendant, in the event that the construction work is not commenced within three years from the date on which the approval was obtained for the business plan, or where the construction is suspended for at least one year after the commencement of the construction work, the Defendant, upon notification of the fact that the construction of the factory is not completed within four years after the approval for the business plan, urged the Plaintiff to complete the construction as soon as possible and implement the instant business plan. On January 10, 2012, the Plaintiff urged the Plaintiff again to implement the instant business plan by March 31, 2012, and not so, would proceed with the procedure for cancelling the approval for the business plan.

C. Notwithstanding the above implementation promotional Gu, the Plaintiff failed to implement the instant project plan, and the Defendant suspended construction on September 19, 2012 after the commencement of the factory, and the Plaintiff did not complete the construction of the factory by not later than four years after the approval of the project plan was obtained (hereinafter referred to as the “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 4, Gap evidence 7-1, Eul evidence 1-4 and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Article 27(3) of the Enforcement Decree of the Support for Small and Medium Enterprise Establishment Act provides that the revocation of the approval of a business plan shall be made only when a person subject to the disposition changes a business plan or recommends the construction of a factory and fails to comply with the recommendation. The defendant made the disposition in this case without taking such a procedure. This is unlawful as it violates the procedure prescribed by the Enforcement Decree.

2) The delay of the construction of the Plaintiff’s factory has become difficult to raise funds due to global financial crisis, and the time has been somewhat required to resolve civil and criminal disputes surrounding the construction, which constitutes a cause corresponding to a natural disaster or a cause similar to a natural disaster or a cause delaying construction for the improvement of the financial structure and the normalization of management, and thus constitutes an exception to the revocation of the approval for the establishment of a factory under the proviso of Article 13-5 of the Industrial Cluster Development and Factory Establishment Act and Article 19-4 of the Enforcement Decree of the same Act, and

3) In full view of the fact that the Plaintiff invested considerable funds to implement the instant project plan, the civil engineering corporation shows a progress rate of 80 to 90%, and the Plaintiff completed the expansion and improvement project of access roads to nearby villages, there is an error of law that deviates from and abused discretionary power, since the instant disposition causes damage to the Plaintiff, rather than the public interest that the Defendant intends to achieve.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) First, we examine whether there is any defect in the procedure alleged by the Plaintiff in the instant disposition.

As seen earlier, the Defendant urged the implementation of the instant project plan by notifying the grounds for revocation of the approval of the project plan on April 8, 2011 and January 10, 2012 on two occasions, and demanded that the Plaintiff implement the instant project plan after which the Plaintiff failed to implement the instant project plan, and the Defendant made the instant disposition on September 19, 2012 due to the failure to implement the instant project plan following the hearing procedure. This constitutes “a case where the Defendant modified the project plan or recommended the construction of a factory within a certain period of time prescribed by Article 27(3) of the Enforcement Decree of the Support for Small and Medium Enterprise Establishment Act, and fails to comply with the instant disposition.” Accordingly, this part of the Plaintiff’s assertion is without merit.

2) Next, we examine the allegation that the cause of delay in construction constitutes grounds for natural disasters, improvement of the financial structure or promotion of business normalization.

According to the statement No. 8-1, 23, and 25-2, and the result of the Plaintiff’s representative C personal examination, D, who managed and supervised the Plaintiff’s factory construction corporation, applied for compulsory auction of real estate on or around April 29, 201 and filed a lawsuit for objection against the Plaintiff’s claim. Around August 4, 2011 from the Plaintiff’s side, it is deemed that D was prosecuted for a crime of occupational embezzlement. However, it is difficult to recognize that the Plaintiff’s delay in construction constitutes a cause corresponding to a natural disaster, or a case for improving the financial structure or promoting the normalization of management, and there is no other evidence to acknowledge this otherwise. Accordingly, this part of the Plaintiff’s assertion is without merit.

3) We examine the allegation that the instant disposition was unlawful by deviating from and abusing discretionary power.

The facts acknowledged as above are as follows: ① Article 37 of the Support for Small and Medium Enterprise Establishment Act imposes a sanction of cancellation of approval on a project plan lacking reality; on the other hand, it aims at the rational preservation of the environment by preventing any damage to land caused by long-term construction; ② the Defendant granted a sufficient period for the Plaintiff to complete the construction of a factory for about four years and five months from September 19, 2012, which is the date of the instant disposition, until September 19, 2012; even if the Plaintiff failed to complete the construction of a factory, even if the Plaintiff demanded the implementation of the project plan two times prior to the instant disposition, the Plaintiff failed to complete the construction of a civil engineering work for the construction of a factory; ③ the Plaintiff was at the construction site during the construction period for which the Plaintiff was doing so, and thus, the Plaintiff’s assertion that the Plaintiff’s disposal of the instant project plan would be somewhat less restrictive than that of the Plaintiff’s assertion that the Plaintiff’s disposal of the instant case would not be justified.

4) Therefore, the instant disposition is lawful.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.