[1] The scope of application of "the excellent items of application for integration" among detailed examination criteria publicly notified by the Korea Broadcasting Commission as to the approval of conversion of a CATV relay broadcasting business operator into a CATV relay broadcasting business operator under Article 7 (1) of the Enforcement Decree

[2] The case holding that the "where an existing CATV broadcasting business operator substantially controls an existing CATV broadcasting business" as referred to in the detailed examination criteria of the Korea Broadcasting Commission related to conversion into a CATV broadcasting business, including the case where a CATV relay broadcasting business operator or an affiliated company of a CATV relay broadcasting business operator comprehensively transfers permission, etc. to an existing CATV broadcasting business operator, not only is the largest investor of a CATV relay broadcasting

[1] Article 9(3) of the Broadcasting Act; Article 7(1) of the Enforcement Decree of the Broadcasting Act / [2] Article 9(3) of the Broadcasting Act; Article 7(1) of the Enforcement Decree of the Broadcasting Act

Han Broadcasting Co., Ltd. (tentative name, Law Firm Jeong, Attorney Lee Jong-soo, Counsel for the plaintiff-appellant)

Korean Broadcasting Commission (Attorney Lee Jae-soo, Counsel for the defendant-appellant)

Seoul High Court Decision 2004Nu11000 delivered on January 5, 2005

The appeal is dismissed. The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

1. As to the legitimacy of the lawsuit

A. In full view of the contents of Article 9(3) of the Broadcasting Act and Article 7(1) and (2) of the Enforcement Decree of the same Act, the fact that a CATV relay broadcasting business operator has to secure more than the percentage publicly notified by the Defendant out of the total number of households within the relevant broadcasting business zone is a matter to be examined to determine whether to approve a CATV relay broadcasting business (hereinafter “approval for conversion”) to the said CATV relay broadcasting business operator (see Supreme Court Decision 2003Du13045, Jan. 14, 2005).

Therefore, the Defendant’s ground of appeal purporting to the effect that the instant lawsuit is unlawful, on the ground that the Plaintiff could not satisfy the subscription ratio of at least 15%, which is the qualification requirement for the application for a CATV broadcasting business, due to the Plaintiff’s loss of the status of the CATV relay broadcasting business operator after the instant rejection disposition.

B. In citing the judgment of the court of first instance, the court below determined that the defendant's main safety defense that the approval of the plaintiff's CATV broadcasting business for the plaintiff would have to be revoked after the fact that there is a ground for revocation of the approval of the CATV broadcasting business, and that the plaintiff could not immediately have a benefit to seek revocation of the rejection disposition of this case, even if the rejection disposition of this case is revoked, it cannot be said that the plaintiff has no benefit to seek revocation of the rejection disposition of this case.

In light of the relevant laws and records, the judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the interest in the lawsuit as otherwise alleged in the ground of appeal.

2. As to the application of the special provisions of this case

According to the reasoning of the judgment below, the court below found that the defendant established detailed criteria for the approval of conversion of this case on October 7, 2002, and according to the above detailed criteria, among the examination items, the excellent items of the application for conversion of a CATV relay broadcasting business operator who participated in the application for conversion from among the total CATV relay broadcasting business operators permitted within the broadcasting area (hereinafter referred to as "integrated rate") shall be converted to the ratio of the number of the CATV relay broadcasting business operators who participated in the application for conversion from among the total CATV relay broadcasting business operators permitted within the broadcasting area. In relation to whether the existing CATV relay broadcasting business operator's application for entry defense and the type of distorted "col business", even if there is a permission for relay cable broadcasting business owned or substantially controlled by the existing CATV relay broadcasting business operator, it shall be deemed that one CATV relay broadcasting business operator has been permitted (hereinafter referred to as "the special provisions of this case" in this part for convenience). In light of the legislative purport of the conversion approval system and the background, circumstance, and purport thereof, the special provisions of this case shall not be interpreted only where the applicant for conversion or the defendant applies to any person.

In the same purport, the court below is just in holding that the special provisions of this case should be applied in calculating the integration rate of the items of the application for consolidation against the plaintiff, and there is no error of law such as misunderstanding of legal principles, incomplete hearing, or omission of judgment.

3. Regarding the interpretation and application of the “actual control relationship” among the special provisions of the instant case

The lower court rejected the Defendant’s assertion that “the case where an existing CATV broadcasting business operator substantially controls relay cable broadcasting” in the instant special provisions refers to the case where the largest investor of a CATV relay broadcasting business operator is a CATV broadcasting business operator or an affiliated company of a CATV relay broadcasting business operator, and presumed that the case where a CATV relay broadcasting business operator has actually transferred the business to an existing CATV relay broadcasting business operator by comprehensively transferring the license, etc., it constitutes the case where the existing CATV relay broadcasting business operator actually controls relay cable broadcasting business operator, and determined that the existing CATV relay broadcasting business operator under the instant special provisions constitutes a case where the existing CATV relay broadcasting business operator actually controls relay cable broadcasting business operator, regardless of whether the existing CATV relay cable relay is holding the license, after comprehensively taking account of the adopted evidence, comprehensively transferring the facts as indicated in the reasoning and comprehensively transferring the business assets, including the license, to the existing CATV relay broadcasting business operator, the existing CATV relay broadcasting business operator, a CATV relay broadcasting business operator, and the existing CATV relay broadcasting company, a CATV relay broadcasting business operator, in fact

In light of records and relevant statutes, conversion approval system, and the purport of the special provisions of this case, such fact-finding and determination by the court below are justified, and there is no violation of the rules of evidence as otherwise alleged in the grounds of appeal.

4. Conclusion

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

Justices Ahn Dai-hee (Presiding Justice)