[1] In the case of approval for a business plan under the former Support for Small and Medium Enterprise Establishment Act, whether the effect of approval for a business plan may be extinguished only by maintaining the validity of the pertinent constructive authorization and permission (affirmative)

[2] In a case where the head of a Gun approved a project plan deemed as permission for conversion under Article 35 of the former Support for Small and Medium Enterprise Establishment Act to Gap corporation, and attached the condition that the permission for conversion may be revoked if Gap corporation failed to implement an order to prevent disasters in connection with the permission for conversion of a mountainous district, but Gap corporation notified the revocation of permission for conversion of a mountainous district on the ground that it failed to implement measures to prevent disasters, and subsequently revoked Gap corporation's approval of a project plan on the ground that the permission for conversion of a mountainous district was revoked due to cancellation of land form and quality alteration, etc., the case holding that the revocation of permission for deemed conversion constitutes a disposition subject to appeal, and that there is a need to dispute

[1] In light of the contents, structure, and purport of Articles 35(1) and 33(4) of the former Support for Small and Medium Enterprise Establishment Act (amended by Act No. 14839, Jul. 26, 2017); Article 24(1) of the Enforcement Decree of the Support for Small and Medium Enterprise Establishment Act; and Article 24(1) of the Enforcement Decree of the Support for Small and Medium Enterprise Establishment Act on the approval of a business plan publicly notified by the Administrator of the Small and Medium Business Administration (hereinafter “business management guidelines”), the validity of the relevant constructive authorization may be extinguished by revoking or revoking only the constructive authorization in cases of approval of a business plan under the Support for Small and Medium Enterprise Establishment Act for the following reasons.

① The legislative purpose of Article 35(1) of the Small and Medium Enterprise Establishment Act is to process the constructive authorization and permission en bloc by integrating the windows so that business starters may promptly build a factory and start a business. According to the above provision, only the matters on which a person authorized to approve project plans has consulted with the head of the relevant administrative agency can be deemed as authorization and permission at the time of approval, and it does not require a prior consultation on all matters on the agenda of authorization and permission related to the relevant business. Article 15(1) of the Work Process Guidelines clearly stipulates that only a part of the authorization and permission can be approved except for the matters on which consultation has not been held.

(2) In addition, documents, procedures and standards related to the constructive authorization and permission matters when a business plan is approved, and relevant Acts and subordinate statutes based on authorization and permission are applied (Articles 5(1), 8(5), and 16 of the Business Handling Guidelines). Thus, the purpose of the agenda of authorization and permission is not to exclude the examination of procedures or requirements under individual Acts and subordinate statutes related to the constructive authorization and permission matters.

(3) Since authorization and permission deemed as approval for a project plan has the same effect as that of ordinary authorization and permission, it is necessary to permit cancellation or withdrawal of authorization and permission deemed as legal means to eliminate the validity thereof. In particular, Article 18 of the Business Handling Guidelines provides for modification procedures of authorization and permission deemed as approval for a project plan. However, if it is possible to modify matters of authorization and permission deemed as approval after approval for a project plan, cancellation or withdrawal can be made to extinguish only the effects of the deemed authorization and permission in relation to matters of authorization and permission deemed as approval for a project plan.

(4) If part of the authorization or permission deemed as approval for a project plan is revoked or withdrawn as above, the remaining authorization or permission, except for the authorization or permission revoked or withdrawn. In such cases, where authorization or permission for a part of the matters of authorization or permission for a project is deemed as constructive authorization or permission for a project in accordance with the initial approval for a project plan, if authorization or permission for a part of the matters of authorization or permission related to a project becomes impossible (Article 15(2) of the Business Handling Guidelines), as if the approval for a project plan can be revoked (Article 15(2) of the Business Handling Guidelines), or as if

[2] In a case where the head of a Gun attached the condition that the permission for conversion of a mountainous district may be revoked if the head of a Si/Gun did not comply with an order to prevent disasters in connection with the permission for conversion of a mountainous district when he/she approves a project plan deemed granted pursuant to Article 35 of the former Support for Small and Medium Enterprise Establishment Act (amended by Act No. 14839, Jul. 26, 2017), and the revocation of the permission for conversion of a mountainous district shall be notified on the ground that the company Gap failed to implement preventive measures against disasters, and the revocation of the permission for conversion of a mountainous district becomes impossible due to revocation of the permission for the alteration of land form and quality, the court held that the revocation of the permission for conversion of a constructive mountainous district constitutes a disposition subject to an administrative litigation, taking into account the fact that the head of a Gun ceased the effect of the permission for conversion of a mountainous district, which directly causes changes in the specific rights and obligations of Gap company Gap, and that revocation of the permission for conversion of a project plan is required separately from revocation of the approval.

[1] Articles 33(4) and 35(1) of the former Support for Small and Medium Enterprise Establishment Act (Amended by Act No. 14839, Jul. 26, 2017); Article 24(1) of the Enforcement Decree of the Support for Small and Medium Enterprise Establishment Act / [2] Articles 33(4) and 35(1) of the former Support for Small and Medium Enterprise Establishment Act (Amended by Act No. 14839, Jul. 26, 2017); Article 24(1) of the Enforcement Decree of the Support for Small and Medium Enterprise Establishment Act

[1] Supreme Court Decision 2009Du16305 decided Feb. 9, 2012 (Gong2012Sang, 454)

Libering et al. (Law Firm Dong LLC, Attorneys credit stone et al., Counsel for the defendant-appellant)

Mansan Gun (Law Firm Cheongung Law, Attorney Shin-yang et al., Counsel for defendant-appellant)

See the list of the Intervenor joining the Defendant (Law Firm Jung-tae, Attorneys Gyeong-soo et al., Counsel for the defendant-appellant)

Daejeon High Court (Cheongju) Decision 2016Nu10900 decided May 24, 2017

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Article 35(1) of the former Support for Small and Medium Enterprise Establishment Act (amended by Act No. 14839, Jul. 26, 2017; hereinafter “the Small and Medium Enterprise Establishment Act”) provides that when approving a business plan pursuant to Article 33(1) of the same Act, the authorization and permission shall be deemed granted for the matters that were subject to consultation with the head of another administrative agency.

Meanwhile, Article 33(4) of the Small and Medium Enterprise Establishment Act and Article 24(1) of the Enforcement Decree of the Support for Small and Medium Enterprise Establishment Act provide that the Administrator of the Small and Medium Business Administration may prepare and publicly notify guidelines necessary to deal with business affairs related to the approval of a business plan, including business affairs guidelines related

Accordingly, according to the Integrated Business Guidelines for the Approval of Business Start-Up Plan (hereinafter “Business Handling Guidelines”) publicly notified by the Administrator of the Small and Medium Business Administration, ① processing of matters of authorization deemed necessary shall comply with the standards and procedures prescribed by applicable Acts and subordinate statutes of each authorization (Article 5(1)); ② Application documents and accompanying documents prescribed by applicable Acts and subordinate statutes of the matters of authorization deemed necessary to be attached to the above guidelines shall be deemed attached to the business plan and business plan even if they are not separately submitted (Article 8(5)); ③ only a part of the matters of application for approval of business plan, excluding matters of authorization for which consultation is not held, may be approved (Article 15(1)). In such cases, the applicant shall be notified that some of the matters of approval already made may be revoked (Article 15(2)); ④ The conditions of approval may be imposed in accordance with the standards and procedures prescribed by applicable Acts and subordinate statutes of the matters of authorization deemed as necessary (Article 16); ⑤ The modification of the business plan, among the matters of authorization deemed as the approval of business plan, may be subject to the procedure (Article 18).

2. In light of the contents, structure, purport, etc. of the above provisions, it is reasonable to view that the validity of the pertinent constructive authorization and license can be extinguished while maintaining the validity of the pertinent constructive authorization and license by revoking or withdrawing the constructive authorization and license in the case of the approval of a business plan under the Small and Medium Enterprise Establishment Act for the following

A. The legislative purpose of Article 35(1) of the Small and Medium Enterprise Establishment Act is to process the constructive authorization and permission en bloc by integrating the windows so that business starters may promptly build a factory and start a business. According to the above provision, only the matters on which a person authorized to approve project plans has consulted with the head of the relevant administrative agency can be deemed as authorization and permission at the time of approval, and not all the matters on the legal fiction of authorization and permission related to the pertinent business should be subject to prior consultation (see, e.g., Supreme Court Decision 2009Du16305, Feb. 9, 2012). Article 15(1) of the Business Handling Guidelines clearly stipulates that only a part of the matters other than the matters on which consultation has not been held can be approved.

B. In addition, the relevant laws and regulations on the basis of authorization and permission shall apply to the submission of documents, procedures and criteria for the constructive authorization and permission matters, and the imposition of the conditions of authorization (Articles 5(1), 8(5), and 16 of the Work Handling Guidelines). Therefore, it is not deemed that the purpose of the authorization and permission agenda is to exclude the examination of the procedures or requirements under the individual laws and regulations on the constructive authorization matters.

C. Since the authorization and permission deemed as approval for a project plan has the same effect as that of ordinary authorization and permission, it is necessary to cancel or withdraw the authorization and permission deemed as legal means to eliminate its validity. In particular, Article 18 of the Business Procedure Guidelines provides for the modification of the authorization and permission deemed as approval for a project plan, and if it is possible to modify the matters deemed as approval after approval for a project plan, it should be deemed that the cancellation or withdrawal can be made to extinguish only the effects of the pertinent deemed authorization and permission in the event of a cause for cancellation or withdrawal.

D. As can be seen, if part of the authorization or permission deemed as approval for a project plan is revoked or withdrawn, the remaining authorization or permission except for the already revoked or withdrawn authorization or permission is deemed to have been deemed to have been deemed to have been granted. In this case, if authorization or permission for a part of the matters concerning the authorization or permission for a project is deemed to have been deemed to have been granted only for a part of the matters concerning the initially revoked or withdrawn authorization or permission for a project plan (Article 15(2) of the Business Processing Guidelines), the approval for a project plan itself may be revoked if authorization or permission for the matters concerning the revoked or withdrawn authorization or

3. Review of the reasoning of the first instance judgment cited by the lower judgment and the evidence duly admitted by the lower court reveals the following facts.

A. On October 2, 2014, the Defendant approved the Plaintiff’s business plan that deemed permission for conversion of a mountainous district, etc. under Article 35(1) of the Small and Medium Enterprise Establishment Act (hereinafter “instant business plan”). The Defendant approved the instant business plan and attached the “matters of conditions (information) according to the business plan,” and included the content that the permission for conversion of a mountainous district may be revoked if the Defendant fails to comply with an order for disaster prevention or recovery under Article 37 of the Mountainous Districts Management Act in relation to the deemed permission for conversion of a mountainous district.

B. On September 10, 2015, the Defendant issued a prior notice of revocation of permission for mountainous district conversion on the ground that the Plaintiff failed to take measures to prevent disasters under Article 37 of the Management of Mountainous Districts Act. On September 21, 2015, the Defendant notified the revocation of permission for mountainous district conversion deemed to have been granted on January 8, 2016 (hereinafter “Revocation of permission for mountainous district conversion”). Accordingly, the Defendant directed the Defendant to file an administrative appeal and administrative litigation against the notification of revocation of permission for mountainous district conversion of this case.

C. On March 18, 2016, the Defendant revoked the approval of the instant project plan on the ground that the permission, etc. to change the form and quality of land was revoked, thereby making it impossible to establish a mountainous district (Revocation of Permission). (hereinafter “Revocation of the approval of the instant project plan”).

4. Examining the foregoing factual basis in light of the legal principles as seen earlier, the revocation of the instant permission for mountainous district conversion seems to result in a direct change in the Plaintiff’s specific rights and obligations by extinguishing the validity of the deemed permission for mountainous district conversion. In full view of the fact that the Defendant reported the revocation as a disposition, and notified the Defendant of the prior notice and hearing procedures under the Administrative Procedures Act, and provided guidance to file an administrative appeal and administrative litigation, it constitutes a disposition subject

In addition, following the revocation of the permission of this case, the approval of the project plan of this case is deemed to have only the remaining matters of permission except for the permission of mountainous district conversion. Therefore, the revocation of the approval of the project plan of this case should be revoked only for the matters of permission except for the permission of mountainous district conversion. As long as the revocation of the permission of this case and the revocation of the approval of the project plan of this case differ from the scope of the subject and scope, it is necessary for the Plaintiff

Furthermore, the Defendant revoked the permission for mountainous district conversion of this case, and accordingly revoked the approval of the project plan of this case, the lower court should first examine and determine whether the revocation of the permission for mountainous district conversion of this case is legitimate, and should have deliberated whether the revocation of the approval for the project plan of this case is legitimate.

5. Nevertheless, the lower court rejected the claim for revocation of the instant permission by deeming that the revocation of the instant permission for mountainous district conversion does not constitute a disposition subject to appeal and that there exists no practical interest in dispute as long as the revocation of the instant permission for project plan was revoked. Accordingly, the lower court determined that the revocation of the instant project plan was lawful solely on the ground that it did not examine and determine whether the revocation of the instant permission for mountainous district conversion is legitimate, and if lawful, whether the permission for mountainous district conversion was not re-acquisitiond. In so doing, the lower court erred by misapprehending the legal doctrine on disposition subject to appeal, failing to exhaust all necessary deliberations

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

[Attachment] List of Intervenor joining the Defendant: Omitted

Justices Kwon Soon-il (Presiding Justice)