(a) A Mayor/Do Governor to whom the authority to take measures, such as the suspension of business, is delegated under Article 50 (2) 3 of the former Construction Business Act;

Whether it can be re-entrusted to the head of the Gu, etc.

B. Whether the so-called authority delegated affairs can be re-entrusted by the municipal ordinance of local government

(c) Criteria to determine whether defective administrative dispositions are void automatically;

(d) In cases where a municipal ordinance of the disposal authority becomes null and void, whether an administrative disposition based on the relevant provision is void automatically;

A. According to Article 57 (1) of the former Construction Business Act (amended by Act No. 4724 of Jan. 7, 1994) and Article 53 (1) 1 of the Enforcement Decree of the same Act, the authority of disposition such as the suspension of business under Article 50 (2) 3 of the same Act, which belongs to the authority of the Minister of Construction and Transportation, is delegated only to the Mayor of Seoul Special Metropolitan City, Metropolitan City, or Do Governor, and the Mayor/Do Governor does not have any ground to re-entrust it to the head of the Gu, Metropolitan City, or Do Governor, but there is no general ground to re-entrust it pursuant to Article 5 (1) of the Government Organization Act and Article 4 of the Regulations on the Delegation and Entrustment of Administrative Authority based thereon

B. Since the affairs concerning dispositions such as the suspension of business under Paragraph (a) fall under the delegated affairs of the so-called local government that are delegated to the head of the local government, the Mayor/Do Governor shall not re-entrust them to the head of the local government pursuant to the ordinances of the local government, and it is possible to re-endorse them pursuant to the regulations enacted by the head of the local government after obtaining approval from the

(c) [Majority Opinion] In order for a defective administrative disposition to be null and void as a matter of course, it must be objectively apparent that the defect is a serious violation of an essential part of the law, and should be objectively apparent, and in determining whether the defect is grave and obvious, the purpose, meaning, function, etc. of the law should be considered from a teleological perspective and reasonable consideration of the specificity of the specific case itself.

[Dissenting Opinion] Clearness as a basis for determining the invalidation of an administrative act is a supplementary requirement when it is necessary to ensure the smooth administration of the administration by ensuring the legal stability of the administrative disposition and to protect a third party or public trust believed to be effective. If such a defect is so serious that it is unnecessary to remedy the rights and interests of the other party to the administrative disposition and to correct the unlawful result much more than that of the other party to the administrative disposition than that of the defect, even if the defect is not clear, an administrative disposition with such significant defect should be deemed to be null and void as a matter of course.

D. [Majority Opinion] In a case where the head of the Gu made a disposition of the suspension of construction business against the State affairs in accordance with the provisions of the Seoul Special Metropolitan City Ordinance on the Delegation of Administrative Authority which is null and void for state affairs beyond the scope of the legislative authority, the disposition is found to be identical to that made by a non-authorized person without legitimate delegation, and its defect is serious. However, the ordinances and rules concerning the affairs of the local government may be deemed to be higher than those of the municipal ordinances. In addition, in light of Article 107(2) of the Constitution of the Republic of Korea, the concept of the so-called rule, including all municipal ordinances and rules of the local government, is differently interpreted depending on the case where the concept of the

[Dissenting Opinion] The head of the Gu’s disposition of the suspension of construction business is limited to prohibiting or suspending the other party from actively engaging in any act, rather than granting the right to do so, and it is not necessary to consider the protection of a third party who trusted the existence of the disposition or the public trust in the order of administrative law. Since the municipal ordinance on the delegation of the disposition authority becomes null and void, it should be deemed extremely serious defect that the disposition authority has no authority to do so. According to the majority opinion, where a municipal ordinance prescribed by the above disposition of suspension of construction business as a rule similar to the above disposition of suspension of construction business, or where an administrative disposition was made pursuant to the invalid law in violation of superior law, it is rare that the disposition of suspension of construction business can be judged null and void. In light of the situation where it is anticipated that an administrative disposition of the above nature as above increases in accordance with the overall implementation of local autonomy and the trend of decentralization of administrative authority, the above disposition of suspension of construction business should be deemed null and void in light of the nature of the disposition or the nature of the disposition of suspension of construction business.

(a)(d)Article 50(2)3 of the former Construction Business Act (amended by Act No. 4724 of Jan. 7, 1994), Article 57(1)1 of the Enforcement Decree of the Construction Business Act, Article 5(1)2 of the Government Organization Act, Article 9, Article 93, Article 95 of the Local Autonomy Act, Article 4(c) of the Regulations on Delegation and Entrustment of Administrative Authority, Article 19 of the Administrative Litigation Act

A.B. Supreme Court Decision 89Nu5287 delivered on February 27, 1990 (Gong1990,789) 89Nu6846 delivered on July 27, 1990 (Gong1990,1806) 92Nu31 delivered on July 28, 1992 (Gong1992,2575) 84Nu419 delivered on July 23, 1985 (Gong1985,1193) 93Nu1432 delivered on December 7, 1993 (Gong194Sang,369) 92Nu9463 delivered on October 28, 1994

Co., Ltd.

The head of Yeongdeungpo-gu Seoul Metropolitan Government

Seoul High Court Decision 93Gu20643 delivered on February 16, 1994

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, the court below determined that the matters concerning the re-election can be determined by the above regulations only because it belongs to the Minister of Construction and Transportation and it can be delegated to the Mayor/Do Governor, etc., but the Mayor/Do Governor, etc. is consistent with Article 5 (1) of the Government Organization Act and Article 4 of the Regulations on Delegation and Entrustment of Administrative Authority based thereon so long as there are general grounds provisions concerning re-delegation of the above disposition authority, the Mayor/Do Governor, etc. can re-endorse the above disposition authority. Therefore, the plaintiff's assertion that there is no legal ground for re-election of the above disposition authority. However, in this case, since the affairs concerning the regulation of construction business such as business suspension under the Construction Business Act cannot be handled by the local government as the state affairs, and the delegation of the above disposition authority by the Minister of Construction and Transportation is merely a matter concerning the re-election of authority under Article 4 of the Regulations on Delegation and Entrustment of Administrative Authority, it is invalid because the Mayor of Seoul Special Metropolitan City did not enact the regulations concerning the re-election authority.

2. (a) Under Article 57(1) of the Construction Business Act (amended by Act No. 4724 of Jan. 7, 1994; hereinafter the same) and Article 53(1)1 of the Enforcement Decree of the same Act, the authority of disposition such as the suspension of business under Article 50(2)3 of the Construction Business Act, which belongs to the authority of the Minister of Construction and Transportation, is delegated to the Mayor of Seoul Special Metropolitan City, Metropolitan City Mayor or Do governor (hereinafter referred to as the “Mayor/Do governor”) and the Mayor/Do governor has not any provision that can re-entrust it to the head of the Gu, the head of the Si/Gun (hereinafter referred to as the “head of the Gu, etc.”) but there is no provision that can do so under Article 5(1) of the Government Organization Act and Article 4 of the Regulations on Delegation and Entrustment of Administrative Authority based thereon (amended by Presidential Decree No. 10955 of Dec. 11, 1982).

In this case, the Mayor of Seoul Special Metropolitan City did not re-entrust the authority of disposition delegated by the Minister of Construction and Transportation pursuant to Article 4 of the Regulations on Delegation and Entrustment of Administrative Authority and did not re-entrust the authority of disposition to the head of the Gu pursuant to Article 5 (1) [Attachment] of the Seoul Special Metropolitan City Ordinance on Delegation of Administrative Authority (amended by Ordinance No. 2654, Oct. 8, 190). Therefore, the part concerning the re-election of the above authority of disposition among the above Seoul Special Metropolitan City Ordinance on Delegation of Administrative Authority is limited to the state affairs (agency delegated affairs) which exceeded

B. However, in order for a defective administrative disposition to be null and void as a matter of course, it must be objectively clear that the defect is a serious violation of the important part of the laws and regulations, and in determining whether the defect is significant and obvious, the purpose, meaning, function, etc. of the laws and regulations should be examined from a teleological perspective, and at the same time, reasonable consideration should be made on the specificity of the specific case itself (see, e.g., Supreme Court Decision 84Nu419, Jul. 23, 1985; Supreme Court Decision 93Nu11432, Dec. 7, 1993; etc.). As seen above, the defendant conducted the disposition of this case based on the provisions of the null and void Seoul Special Metropolitan City Ordinance on Delegation of Administrative Authority. Thus, the disposition of this case is the same as that conducted by a person without legitimate authority. However, the ordinances and rules of the local government concerning the affairs of the local government can be deemed to be a superior norm, and in light of Article 107(2) of the Constitution, it cannot be objectively justified.

Therefore, the court below's determination that the disposition of this case, which was based on the above re-election, is null and void because the part of the municipal ordinance concerning the re-election is subject to state affairs beyond the scope of the legislative authority, is just, but it is not clear that the defect is serious, and thus, it is not reasonable. Thus, the court below erred in the misapprehension of legal principles as to the above disposition authority under the relevant laws and regulations, which affected the conclusion of the judgment. Thus, the argument on this point is with merit.

3. Therefore, the judgment of the court below shall be reversed, and the case shall be remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench except for Kim Jong-soo and Lee Yong-

The dissenting opinion of Justice Kim Jong-soo and Justice Lee Yong-soo is as follows.

1. The gist of the Majority Opinion is that, in short, the defect in order to make the defective administrative disposition to become null and void abundably, it must be objectively obvious and serious as it violates the important part of the laws and regulations. In this case, it is understood to the purport that the Ordinance that the Seoul Special Metropolitan City Mayor re-entrusts the affairs concerning the disposition of the suspension of construction business, etc. delegated by the Minister of Construction and Transportation to the head of the Gu is subject to the state affairs (agency affairs) beyond the scope of the legislative power, and thus null and void or such circumstances cannot be objectively apparent before a party member's judgment is rendered. Therefore, the disposition of the instant suspension

2. This is based on the premise that the defect should be apparent, whenever it is to make a defective administrative disposition to be null and void a year.

However, since it is unclear what means the apparentness in the theory of material apparent confession, the requirements of apparentness are not sufficiently functioned as the criteria for distinguishing the grounds for revocation and the grounds for invalidation. In addition, if the requirements of apparentness are strictly interpreted in accordance with its literal meaning, or if the existence of the requirements cannot be deemed clear in light of the nature of the defect itself, even if the defect is considerably infringed on the rights and interests of the people due to its significant and significant reason, it makes it impossible to regard the defect as the grounds for invalidation, thereby unfairly restricting the opportunity of the people who suffered disadvantage due to illegal administrative dispositions beyond the reasonable scope.

Therefore, the apparentness as a basis for determining the invalidation of an administrative act is a supplementary requirement in cases where it is necessary to ensure the smooth implementation of the administration and to protect the trust of a third party or the public who believe that the administrative disposition is effective. If such a defect is so serious that it is no longer necessary or more necessary to remedy the rights and interests of the other party to the administrative disposition and correct the unlawful result than such a need due to the lack of the defect, even if the defect is not clear, the administrative disposition with a significant defect should be deemed as null and void as a matter of course.

The majority opinion states that the defect should be objectively apparent in order to make the administrative disposition null and void, but again, that the purpose, meaning, function, etc. of the law should be examined from a teleological perspective in judging its apparentness, and at the same time reasonable consideration should be made on the specificity of the specific case itself. However, if the apparentness is determined through the process of balancing profits as above, it cannot be denied that the requirement of the apparentness has already lost its existence, and it is only to increase confusion in judging whether it constitutes grounds for nullification.

In addition, while the Dissenting Opinion seems to be contrary to the previous precedents in that it criticizes the theory of serious apparent confession, the previous precedents have never been able to seek concrete feasibility by relaxing or not requiring the requirements of apparentness depending on the case in consideration of the nature of defects or the necessity of remedy.

3. As to the instant case, the part of the Seoul Special Metropolitan City Ordinance on the Delegation of Administrative Authority which served as the basis for the instant disposition of suspension of business under the Construction Business Act is null and void, and the defect of the instant disposition of suspension of business, which was made pursuant to the null and void Ordinance, is significant as stated in the majority opinion. Therefore, we examine whether the apparentness of the defect in the instant disposition of suspension of business is the requirement for the invalidation of the disposition of suspension of business.

The disposition of this case is limited to the prohibition or suspension of a disposition of this case to allow the other party to actively engage in certain acts, not to cancel or grant the authority to do so, and it is not necessary to consider the protection of a third party who trusted the existence of the disposition or public trust in the order of administrative law. Since the ordinances on delegation of the disposition authority are null and void, it shall be deemed extremely important that the disposition of this case's disposition of this case's disposition of this case's disposition of this case's disposition of this case's disposition of this case's disposition of this case's disposition of this case's disposition of this case's disposition of this case's disposition of this case's disposition of this case's disposition of this case's disposition of this case's disposition of this case's disposition of this case's disposition of this case's disposition of this case's disposition of this case's disposition of this case's disposition of this case's disposition of this case's disposition of this case's disposition of this case's disposition of this case's disposition of this case's disposition of this case's disposition of this case's whole execution and decentralization of administrative disposition of this case's power.

For the same reason, we cannot agree with the majority opinion that the defect in the disposition of this case is kind of the cause for revocation on the ground that the defect in the disposition of this case is not clear even though the judgment of the court below to the same purport should be dismissed.

Chief Justice Yoon-young (Presiding Justice) (Presiding Justice) Kim Jong-soo, Justice Kim Jong-ho, Justice Kim Jong-ho, Justice Park Jong-ho, Justice Kim Jong-ho, Justice Lee Jong-ho, Justice Lee Jae-ho, Justice Lee Jae-ho, Justice Lee Jae-young,