In a case where a surveying business person falls short of the registration standards under Article 44(2) of the former Act on Land Survey, Waterway Survey and Cadastral Records, whether the administrative agency should revoke the registration of surveying business (affirmative in principle) and whether the case where the surveying business person supplements the registration standards after the fact (negative)

Article 44(2) of the former Act on Land Survey, Waterway Survey and Cadastral Records (amended by Act No. 12738, Jun. 3, 2014; hereinafter “Act”) provides that “Any person who intends to engage in surveying business shall meet the registration standards for technical human resources, equipment, etc. prescribed by Presidential Decree for each type of business and register with the Minister of Land, Infrastructure and Transport or the Mayor/Do Governor.” Article 36 of the former Enforcement Decree of the Act on Land Survey, Waterway Survey and Cadastral Records (amended by Presidential Decree No. 25104, Jan. 17, 2014; hereinafter “Enforcement Decree of the Act”) stipulates that “The person who intends to engage in surveying business shall register with the Minister of Land, Infrastructure and Transport or the Mayor/Do Governor.” Article 36

In addition, Article 52 (1) of the Act provides that where a surveying business person falls under subparagraph 4 of the same paragraph, the Minister of Land, Infrastructure and Transport, etc. shall revoke the registration of surveying business, and Article 52 (4) of the Act provides that "if the surveying business person falls under subparagraph 4 of the same paragraph, the Minister of Land, Infrastructure and Transport, etc. shall revoke the registration of surveying business: Provided, That the same shall not apply to cases prescribed by Presidential Decree, such as temporary failure to meet the registration standards, etc.," and Article 44 of the Enforcement Decree of the Act provides that "where the period of falling short of the registration standards is less than 90 days due to the death, disappearance, or retirement of a person who has the technical ability under attached Table 8.

The purport of Article 52(1) proviso and Article 52(1)4 of the Act is to protect the legal stability of land-related legal relations and the rights and interests of the people by guaranteeing the public nature of the survey system and the accuracy of the survey business by preventing any person who fails to meet the qualification requirements prescribed by the Act from running the survey business. In light of such legislative purport, Article 44(2) proviso and Article 52(1) of the Act provides that a registered surveying business operator who falls short of the registration standards pursuant to Article 44(2) of the Act shall be a ground for revocation of registration as a matter of principle: Provided, That Article 44 of the Enforcement Decree of the Act provides that where any circumstance occurs, such as temporary falling short of the registration standards due to the death, disappearance, or retirement of technical personnel, such circumstance is excluded from the grounds for revocation of registration, thereby seeking to protect the

In light of the contents and purport of the above provisions, if a surveying business operator fails to meet the registration standards under Article 44(2) of the Act, such as where he/she temporarily falls short of the registration standards, such as “where he/she falls short of the registration standards due to the death, disappearance, or retirement of technical human resources,” the administrative agency should revoke the registration of surveying business on such ground, and it does not change even if the surveying business operator supplements the registration standards ex post facto.

Articles 44(2) and 52(1)4 of the former Act on Land Survey, Waterway Survey and Cadastral Records (Amended by Act No. 12738, Jun. 3, 2014); Articles 36 and 44 of the former Enforcement Decree of the Act on Land Survey, Waterway Survey and Cadastral Records (Amended by Presidential Decree No. 25104, Jan. 17, 2014);

Plastic Korea Co., Ltd. (Law Firm Gong & Kim, Attorneys Jeon Jong-min et al., Counsel for the plaintiff-appellant)

President of the National Land Geographic Information Institute (Law Firm, Attorneys Kim Jong-min et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2013Nu52232 decided October 22, 2014

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

The grounds of appeal are examined.

1. Article 44(2) of the former Act on Land Survey, Waterway Survey and Cadastral Records (amended by Act No. 12738, Jun. 3, 2014; hereinafter “Act”) provides that “any person who intends to conduct surveying business shall meet the registration standards for technical human resources, equipment, etc. prescribed by Presidential Decree for each type of business and register with the Minister of Land, Infrastructure and Transport or the Mayor/Do Governor.” Article 36 of the former Enforcement Decree of the Act on Land Survey, Waterway Survey and Cadastral Records (amended by Presidential Decree No. 25104, Jan. 17, 2014; hereinafter “Enforcement Decree of the Act”) defines the registration standards for surveying business by dividing technical ability into the items of technical ability and equipment items.

In addition, Article 52 (1) of the Act provides that where a surveying business person falls under subparagraph 4 of the same paragraph, the Minister of Land, Infrastructure and Transport, etc. shall revoke the registration of surveying business, and Article 52 (4) of the Act provides that "if the surveying business person falls under subparagraph 4 of the same paragraph, the Minister of Land, Infrastructure and Transport, etc. shall revoke the registration of surveying business: Provided, That the same shall not apply to cases prescribed by Presidential Decree, such as temporary failure to meet the registration standards, etc.," and Article 44 of the Enforcement Decree of the Act provides that "where the period of falling short of the registration standards is less than 90 days due to the death, disappearance, or retirement of a person who has the technical ability under attached Table 8.

The purport of Article 52(1) proviso and Article 52(1)4 of the Act is to protect the legal stability of land-related legal relations and the rights and interests of the people by guaranteeing the public nature of the survey system and the accuracy of the survey business by preventing any person who fails to meet the qualification requirements prescribed by the Act from running the survey business. In light of such legislative purport, Article 44(2) proviso and Article 52(1) of the Act provides that a registered surveying business operator who falls short of the registration standards pursuant to Article 44(2) of the Act shall, in principle, be subject to the necessary revocation of registration: Provided, That Article 44 of the Enforcement Decree of the Act provides that where any circumstance occurs, such as temporary falling short of the registration standards, such as where the period of falling short of the registration standards due to death, disappearance, or retirement of technical personnel does not exceed 90 days,

In light of the contents and purport of the above provisions, if a surveying business operator fails to meet the registration standards under Article 44(2) of the Act, unless there is a circumstance that temporarily falls short of the registration standards, such as “where the period of falling short of the registration standards due to the death, disappearance, or retirement of technical human resources does not exceed 90 days,” the administrative agency should revoke the registration of surveying business on such ground, and even if the surveying business operator supplements the registration standards after the fact, it does not change.

2. According to the reasoning of the lower judgment, the lower court determined that the Defendant’s revocation of the Plaintiff’s registration of surveying business was unlawful, inasmuch as the Plaintiff, who was engaged in surveying business on January 11, 201 and January 18, 2012, illegally leased a national technical qualification certificate from two holders of a national technical qualification certificate, and reported the above technicians to the Defendant as technical human resources for the Plaintiff’s surveying business on January 11, 201, and conducted the business. In full view of the circumstances in its reasoning, it is reasonable to view that the term “cases failing to meet the registration standards under Article 44(2)” under Article 52(1)4 of the Act is in the state of failure to meet the registration standards at the time of the disposition. Accordingly, insofar as the Plaintiff was employed as a technical human resources at the time of the instant disposition on March 28, 2013, and was not in the state of failure to meet the registration standards.

3. However, according to the reasoning of the lower judgment and the record, the Plaintiff: (a) retired technical human resources and went to fall short of the technical capacity among the criteria for registration under Article 44(2) of the Act; (b) and (c) obtained a certificate of qualification from two holders of national technical qualification in sequential order from two holders of the national technical qualification certificate to report the above persons with technical capacity as the Plaintiff’s technical capacity; and (c) operated a survey business in excess of 90 days in a state with only the appearance of meeting the technical capacity. In light of the aforementioned legal principles, in light of the aforementioned facts, the Plaintiff’s ground for falling short of the above criteria for registration; (d) i.e., “the circumstance that the period of falling short of the criteria for registration due to retirement of technical personnel exceeds 90 days” constitutes a ground for the revocation of the Plaintiff’

Nevertheless, the lower court determined otherwise solely on the grounds indicated in its reasoning. In so determining, it erred by misapprehending the legal doctrine on the meaning of “where a person falls short of the registration standards pursuant to Article 44(2)4 of the Act” under Article 52(1)4 of the Act, which affected the conclusion of the judgment.

4. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-dae (Presiding Justice)