Plastic Korea Co., Ltd. (Law Firm Nois, Attorney Shin Young-young, Counsel for the plaintiff-appellant)

Director of the National Land Geographic Information Institute (Law Firm, Attorney Kim Gyeong-hoon, Counsel for the plaintiff-appellant)

August 20, 2014

Suwon District Court Decision 2013Guhap3499 Decided November 13, 2013

1. Revocation of the first instance judgment.

2. The revocation of registration made by the Defendant to the Plaintiff on March 28, 2013 shall be revoked.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Details of disposition;

On January 11, 2011, and January 18, 2012, the Plaintiff engaged in a survey business, etc., by illegally borrowing a national technical qualification certificate from Nonparty 1 and Nonparty 2, and reported it to the Defendant as technical human resources for the Plaintiff’s survey business. Accordingly, the Defendant rendered a disposition revoking the Plaintiff’s registration of survey business on March 28, 201, on the ground that the Plaintiff’s survey falls under “where the Plaintiff becomes short of the registration standards under Article 44(2) of the Land Survey, Waterway Survey and Cadastral Records Act (hereinafter “Survey Act”) (hereinafter “instant disposition”).

[Ground of recognition] Unsatisfy, entry of Gap evidence No. 3, purport of whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The phrase “cases failing to meet the registration standards under Article 44(2)” in the legal provision of the instant case refers to cases falling short of the registration standards at the time of the instant disposition. As the Plaintiff met the registration standards at the time of the instant disposition, the legal provision of the instant case cannot be applied to the Plaintiff.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

In full view of the following circumstances, the term “cases falling short of the registration standards under Article 44(2)” in the instant legal provision means cases falling short of the registration standards at the time of the instant disposition. However, it is reasonable to view that the Plaintiff was unable to meet the registration standards by supplementing the insufficient registration standards at the time of the instant disposition, and there is no dispute between the parties to the instant disposition. Therefore, the instant disposition is unlawful.

① Even if the legislative purpose of a certain Act is lawful and its chosen means to achieve its original purpose, if legislators intend to realize its purpose by a necessary provision without excluding the possibility of considering the individual nature and specificity of a specific case, even though it can achieve the legislative purpose by a voluntary provision, it violates the least infringement doctrine (see Constitutional Court Order 2013HunBa25, Apr. 24, 2014). Meanwhile, when a certain concept of a certain Act is complicated and it is possible to interpret several within the framework of the law, interpretation that is consistent with the Constitution in order to form a uniform legal order with which the Constitution is the highest law (see Supreme Court Decision 2008Do6693, Apr. 14, 201).

(2) Article 44(2) of the Act provides that “Where a person falls short of the registration standards under Article 44(2), except in cases prescribed by Presidential Decree, such as temporary failure to meet the registration standards,” and Article 44 of the Enforcement Decree of the Land Survey Act (amended by Presidential Decree No. 25104, Jan. 17, 2014) provides that “Cases prescribed by Presidential Decree, such as temporary failure to meet the registration standards” means cases where the period of falling short of the registration standards due to death, disappearance, or retirement of a person who has technical capacity prescribed in attached Table 8 does not exceed 90 days. Therefore, the provision of the Act of this case shall apply, regardless of the length of the period falling short of the registration standards or reasons for failure to supplement the registration standards.

(3) Meanwhile, the phrase “in a case where the legal provision of this case does not meet the registration standards” may be deemed to mean a case where the legal provision of this case is in a state of falling short of the registration standards at the time of the disposition, and may be interpreted to mean a case where the legal provision of this case contains a fact of falling short of the registration standards

④ However, the proviso of Article 52(1) of the Land Survey Act provides that an administrative agency shall revoke the registration of a registered business if it falls under the instant legal provision necessary [in this respect, it is different from granting an administrative agency the discretionary power to choose the revocation of registration or the suspension of business where many laws and subordinate statutes (Article 10-7(2) of the Urban Gas Business Act, Article 27(2)10 of the Toxic Chemicals Control Act, and Article 40 subparag. 2 of the Railroad Enterprise Act, etc.) that stipulate the registration system “if it comes to fall short of the registration standards” (Article 10-7(2) of the Urban Gas Business Act, Article 27(2)10 of the Toxic Chemicals Control Act, and Article 40 subparag. 2 of the Railroad Enterprise Act,” regardless of whether the meaning of the instant legal provision is supplemented at the time of the disposition, if it is interpreted that the previous gender falls short of the registration standards for at least 90 days, it would violate the least infringement doctrine as seen earlier.

On the other hand, it is reasonable to deem that there is no intention or ability to engage in the surveying business if the registration is not supplemented by not only the 90-day registration standards but also fails to supplement the registration even until the revocation of the registration through prior procedures, such as hearing procedures, etc., and it is difficult to deem that the registration is revoked as necessary is contrary to the least infringement principle.

Therefore, in accordance with the principle of constitutional interpretation as seen earlier, it is reasonable to eliminate the meaning of the legal provision of this case in cases where the legal provision of this case does not meet the registration standards even before the disposition exceeds 90 days.

(5) Furthermore, the same term in the same Act should be interpreted and applied in the same manner unless there are special circumstances, such as other provisions in the Act and subordinate statutes (Supreme Court Decision 2006Du1149 Decided April 13, 207).

However, the proviso of Article 52(1)7 of the Land Survey Act provides that the registration of “a case falling under any of the subparagraphs of Article 47” shall be revoked as in the instant legal provisions. In addition, Article 47 of the same Act provides that a person who was sentenced to imprisonment without prison labor or a heavier punishment for violating the Land Survey Act and for whom two years have not passed from the date on which the execution of the sentence was terminated or exempted (Article 2) or a person who was under the suspension of execution (Article 3), and a person in whose case two years have not passed from the date on which the registration of surveying business was revoked (Article 4).

In light of the language and text of the provision, it is reasonable to interpret the phrase “where the case comes to fall under any of the subparagraphs of Article 47” as a person within the said period at the time of the disposition. In this regard, it is reasonable to deem that the term “where the legal provision of this case comes to fall short of” also means that the term “where the legal provision of this case comes to fall short of

(6) The Defendant asserts that, if the legal provision of this case is limited to cases where the registration criteria are not met at the time of the disposition, the business operator may be abused as a means to avoid sanctions by supplementing the registration standards only after being discovered while conducting business at the time of failing to meet the registration standards and immediately before the disposition of revocation is revoked.

However, even if a registered company fails to meet the registration standards ex post, it is possible to take a disciplinary measure to cancel registration of surveying business or to order suspension of business pursuant to Article 52(1)5 (Article 44(4)) or 13 (where other administrative agencies have requested revocation of registration or suspension of business pursuant to relevant Acts and subordinate statutes) of the Land Survey Act (Article 52(1)4) of the same Act. Therefore, the foregoing unreasonable result cannot be deemed to be reached on the ground that a disciplinary measure pursuant to Article 52(1)4 of the Land Survey Act is impossible. Furthermore, it cannot be said that the former illegal facts are treated differently from the person who subsequently supplemented the past illegal facts, and it cannot be said that it violates the principle of equality. Rather, it is highly probable to deem that non-handling otherwise constitutes discrimination without reasonable grounds.

3. Conclusion

Since the instant disposition is unlawful, the Plaintiff’s claim seeking its revocation shall be accepted on the grounds of its reasoning. The judgment of the first instance is inappropriate on the grounds of its conclusion. The judgment of the first instance is revoked, and the instant disposition is revoked.

[Attachment]

Judges Yoon Sung-sung(Presiding Judge) (Presiding Judge)

1) If a person illegally leased qualification from another person while failing to meet the registration standards and subsequently reported a change, such failure cannot be deemed to constitute a case of failing to report a change in the registered matters.