[1] Where a punitive administrative disposition has ceased to have its effect due to the lapse of the disciplinary period prescribed in the relevant disposition, but it is stipulated that a punitive administrative disposition should be taken in the form of the Enforcement Rule or the rules of a local government, which is a Ministerial Ordinance, as a ground for aggravation or premise, and then future punitive administrative disposition should be taken, whether there is a legal interest in seeking the revocation of the relevant disposition even if the period of sanctions imposed in the prior disposition expired (affirmative with qualification)

[2] The case holding that in case where an agent for environmental impact assessment who was subject to a disposition taken to suspend an agent for environmental impact assessment concludes a new contract for environmental impact assessment agent during the period of business suspension and performs the agency business, there is a legal interest in seeking the revocation of the above business suspension in order not to undergo the subsequent disposition under the Enforcement Rule of the Act on Assessment of Impacts of Works on Environment

[1] [Majority Opinion] Where a disciplinary disposition becomes effective due to the lapse of the period of sanctions prescribed by the relevant administrative disposition, but the disposition is subject to sanctions in the form of the Enforcement Rule or the Rule of a local government (hereinafter “Rules”), which is the Ordinance of the Ministry of Government Administration and Home Affairs, (hereinafter “pre-disposition”) as an aggravated cause or premise, and the future punitive administrative disposition (hereinafter “pre-trial disposition”) is stipulated in the form of rule, barring statutory provisions on the aggravated cause or premise of punitive administrative disposition, insofar as such rule provides for the legal nature of the pre-disposition, regardless of whether it is an external and general binding order, it is naturally anticipated that administrative action should be carried out as prescribed by the rules, and as a result, it would be difficult for the competent administrative agency or the public official to seek relief from any disadvantage of the other party to the prior disposition to seek relief from infringement of rights and interests, and thus, it would be difficult to argue that the other party to the prior disposition would be subject to relief from any disadvantage arising from infringement of rights and interests of the other party to the prior disposition.

[Concurring Opinion by Justice Lee In-bok] The majority opinion does not discuss the legal nature of the Enforcement Rule, which provides for the criteria for imposing sanctions, and stipulates that a prior disposition shall be made in the future without further discussing the legal nature of the Enforcement Rule, which is a Ministerial Ordinance that sets the criteria for imposing sanctions, as the grounds for increase or premise thereof, and there is a legal interest to seek cancellation of the prior disposition even after the period of sanctions prescribed in the prior disposition expires, on the grounds that the disadvantage that the other party to the prior disposition may receive in the future is specific and realistic. In this case, the majority opinion agrees with the conclusion that affirms the legal interest to seek cancellation of the prior disposition, but on the theoretical basis that recognizes the legal nature of the prior disposition, it would be more reasonable in the legal principle to affirm such legal interest. The Enforcement Rule, which sets the criteria for imposing sanctions by delegation of superior statutes, constitutes a delegation order prescribed in Article 95 of the Constitution, and its content is practically related to the matters that directly affect the rights and obligations of the people, and therefore, it shall be deemed that the internal rules of administrative agencies are not merely an internal affairs but external laws and regulations binding.

[2] The case holding that, in case where an agent for environmental impact assessment who has been subject to a disposition taken to suspend an agent for environmental impact assessment concludes a new contract for environmental impact assessment agent during the period of business suspension and performs the agent's business, since Article 10 [Attachment 2] of the Enforcement Rule of the Act on Assessment of Impacts of Works on Environment, Traffic, Disasters, Etc. [Attachment 2] of the "Enforcement Rule of the Act on Assessment of Impacts of Works on Assessment of Impacts of Works on Environment, Traffic, Disasters, etc." provides that where an agent for environmental impact assessment agent performs the agent's business under a new contract during the period of business suspension, he shall be ordered to revoke the agent's registration

[1] Article 1 of the Administrative Litigation Act / [1] Article 1 of the Administrative Litigation Act, Article 12 of the Act / [2] Article 13 (1) 6 of the former Environmental Impact Assessment Act (repealed by Article 2 of the Addenda to the Act on Assessment of Impacts of Works on Environment, Traffic, Disasters, etc., Act No. 6095 of December 31, 199), Article 12 (1) 8 of the Act on Assessment of Impacts of Works on Environment, Traffic, Disasters, etc., Article 10 of the Enforcement Rule of the Act on Assessment of Impacts of Works on Environment, Traffic, Disasters, etc. / [Attachment 2] Article 12 of the Administrative Litigation Act, Article 12 of the Administrative Litigation Act

[1] Supreme Court Decision 87Nu944 delivered on May 24, 198 (Gong1988, 100) (amended) Supreme Court Decision 92Nu3625 delivered on July 10, 1992 (Gong1992, 2419) (amended) Supreme Court en banc Decision 94Nu14148 delivered on October 17, 1995 (Gong195Ha, 3544), Supreme Court Decision 97Nu790 delivered on September 30, 1997 (amended), Supreme Court Decision 2003Du6443 delivered on October 10, 203 (amended)

[Defendant-Appellee-Appellant-Appellee-Appellant]

Head of the Rain Regional Environmental Office

Seoul High Court Decision 2002Nu5360 delivered on December 26, 2002

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

The grounds of appeal are examined.

1. The latter part of Article 12 of the Administrative Litigation Act provides, “Where a person has legal interest in the cancellation of a disposition, etc. even after the effect of the disposition, etc. has expired due to the lapse of a period, the execution of the disposition, etc., or other causes, he/she may file a lawsuit for cancellation.” The latter part of Article 12 of the Administrative Litigation Act permits a lawsuit for cancellation,

However, the effect of a punitive administrative disposition is extinguished due to the lapse of the sanction period prescribed by the relevant administrative disposition, but the disposition criteria prescribed by the Enforcement Rule or the Rule of a local government (hereinafter “Rules”) which is the form of the relevant municipal ordinance and the relevant local government (hereinafter “Rules”) provide for future punitive administrative disposition (hereinafter “pre-trial disposition”) as a ground or premise for the increase of the number of persons subject to a punitive administrative disposition (hereinafter “pre-trial disposition”), there has been conflicting opinions as to whether there is a legal interest to seek the cancellation of the pre-trial disposition under the above provisions of the Administrative Litigation Act, and on that ground, there is no external and external restraint of the administrative order within the administrative organization, so even if there is a concern that the subsequent disposition may be aggravated in the future, it is nothing more than a de facto disadvantage, and it is possible to dispute the facts or illegality of the pre-trial disposition with the opportunity to deliberate and determine whether the aggravated disposition is legitimate.

However, even if a provision on the grounds or premise of an aggravated administrative disposition is not a law but a rule form, as long as such a rule provides for the legal nature of the rule, the competent administrative agency or the public official in charge is obligated to comply with it, regardless of whether it is an external or general binding order, and as a matter of course, it is anticipated that administrative action should be performed according to the rule, and as a result, a national of the other party to the administrative action is bound to be affected by the rule. Accordingly, as prescribed by such rule, the other party subject to the prior disposition is at a disadvantage in the future due to the existence of the disposition, namely, the risk of the subsequent disposition, is specific and realistic, so the other party needs to remove its disadvantage

In addition, even if there remains room for dispute over facts or illegality of the preceding disposition in a lawsuit seeking revocation of the preceding disposition, such circumstance does not serve as a reason to deny the necessity of filing a lawsuit seeking revocation of the preceding disposition in order to prevent it before the subsequent disposition takes place. This is because the following unreasonable consequences may arise and undermine the effectiveness of the protection of rights. First, in a case where the period of sanctions for the preceding disposition expires and the method of litigation that directly contests the illegality of the preceding disposition is not permitted, the other party who seeks to challenge the illegality of the preceding disposition is placed in an unstable situation where it is difficult to resolve the anticipated disadvantage that may occur in the future due to the existence of the preceding disposition, and thus, it may be difficult for him/her to have a considerable difficulty in relation to the relevant prior disposition, and even if the period of sanctions has elapsed to challenge illegality of the preceding disposition itself, even if it is sufficient for him/her to have raised a lawsuit seeking revocation of the preceding disposition, and it may be difficult for him/her to avoid the burden of the preceding disposition without having any inconvenience or burden on the preceding disposition after the preceding disposition.

Rather, as seen earlier, it is naturally anticipated that an administrative agency will conduct a subsequent disposition on the premise that the prior disposition is lawful. As such, allowing to remove disadvantages arising from such prior disposition in a lawsuit against the prior disposition itself would be the most effective and appropriate means to resolve anxietys about the legal status of the other party. Moreover, the fact and illegality of the prior disposition are determined as soon as possible through the lawsuit, thereby ensuring the legality of the future administrative action in relation thereto, and at the same time ensuring the stability of people’s lives.

Therefore, in addition to the various circumstances above, considering the purport of Article 27(1) of the Constitution guaranteeing the citizens' right to trial and the purpose of the Administrative Litigation Act seeking an effective remedy for infringement of rights and interests arising from an administrative disposition, in light of the purpose of Article 27(1) of the Constitution guaranteeing the citizens' right to trial and the purpose of the Administrative Litigation Act, where there is a concrete and real risk of infringement of rights and interests, and where there is a concern that a lawsuit seeking remedy for infringement of rights and interests should be allowed, as prescribed by the Rules, where there is a concern that a subsequent disposition would be subject to an aggravated reason or premise, the other party subject to the prior disposition shall be sufficiently recognized the need to protect the rights to remove such disadvantage through a lawsuit seeking revocation of the prior disposition

Therefore, unlike this, Supreme Court en banc Decision 94Nu148 delivered on October 17, 1995; Supreme Court Decision 87Nu944 delivered on May 24, 198; Supreme Court Decision 92Nu3625 delivered on July 10, 1992; Supreme Court Decision 97Nu790 delivered on September 30, 197; and Supreme Court Decision 2003Du6443 delivered on October 10, 2003, which held that there is no legal interest in seeking the revocation of a punitive administrative disposition, even if a punitive administrative disposition, which has been aggravated pursuant to the above provision, shall be modified to the extent that it is inconsistent with this Opinion.

2. In the case of this case, the record reveals that the defendant concluded an inadequate environmental impact assessment report on the plaintiff, and made a disposition for one month of the suspension of environmental impact assessment agent business under Article 13 (1) 6 of the former Environmental Impact Assessment Act (amended by Article 2 of the Addenda to the Act on Assessment of Impacts of Works on Environment, Traffic, Disasters, Etc.) (hereinafter "the disposition in this case"). The suspension period is from February 2, 2001 to February 8, 2001, the suspension period was suspended as the suspension of execution of the first instance court on February 23, 2002. The plaintiff again started from March 23, 2002, which is the date following the judgment of the first instance court, and the period expired on April 13, 2002. Meanwhile, the Environmental, Traffic, Disasters, etc. Act provides for the new order for the suspension of business as an agent in accordance with the provisions of Article 12 (1) 8 of the Enforcement Rule of the Act or the new order for suspension of business as an agent in accordance with the same Act.

Therefore, in light of the above legal principles, the Plaintiff is likely to be subject to a disposition of suspension of business or subsequent cancellation of registration under the above Enforcement Rule on the ground that the Plaintiff was engaged in an agent business under a new contract during the period of suspension of business, and this is a direct and specific disadvantage to the status of agent business. Thus, the Plaintiff has a legal interest to seek revocation of the instant disposition in order not to be subject to the subsequent disposition even after the period of suspension specified in the instant disposition expired.

Nevertheless, the court below held that the lawsuit of this case is unlawful since the remaining disposition of this case cannot be deemed as infringing on the legal interest of the plaintiff, solely on the ground that the period of business suspension as prescribed by the disposition of this case has expired, since the remaining disposition of this case was in appearance. This decision of the court below erred by misapprehending the legal principles on legal interest after Article 12 of the Administrative Litigation Act

3. Therefore, the judgment of the court below shall be reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating judges, except a separate opinion by Justice Lee Kang-soo.

4. The separate opinion by Justice Lee Kang-soo is as follows.

A. The Majority Opinion does not discuss the legal nature of the Enforcement Rule, which provides for the criteria for the revocation of a punitive administrative disposition (hereinafter “re-disposition”), and, in cases where the Enforcement Rule provides that a prior disposition shall be made in the future on the grounds of aggravation or premise, for the sake of the existence of the prior disposition, the other party to the prior disposition has a legal interest in seeking the revocation of the prior disposition even after the period of sanctions specified in the prior disposition expires on the grounds that it is specific and realistic. In such cases, the Majority Opinion agrees with the conclusion of affirming the legal interest in seeking the revocation of the prior disposition, but on the grounds that it is reasonable to affirm the legal interest on the theoretical basis that recognizes the legal nature of the disciplinary disposition, which is a Ministerial Ordinance, as follows.

B. Although there has been still been a conflict between views such as formal theory and substantive theory regarding the criteria for distinguishing between the previous administrative rules and the statutory order, it should be reviewed from the legal nature of the restrictive criteria stipulated in the Ministerial Ordinance in this case.

Supreme Court Decisions 97Nu15418 delivered on December 26, 1997 and other previous Supreme Court Decisions 97Nu15418 delivered on the basis that the form of the provision is prescribed by Presidential Decree with respect to a disciplinary disposition (Supreme Court Decisions 98Du14174 delivered on December 8, 1998, 99Du14174 delivered on March 9, 2001, and 99Du5207 delivered on March 27, 1998, etc.). However, in cases where the provision of the provision is prescribed by Ordinance of Ministry, the criteria for disposition are merely a provision of the internal business rules of the administrative agency, and the court has no external binding force and has a firm position that it does not need to be bound (Supreme Court Decisions 89Nu3564 delivered on January 25, 190, 96Nu573 delivered on May 30, 197, etc.).

First, the precedents are based on the premise that certain matters are essentially subject to administrative rules, but it is only the issue of legislative policy whether to enact sanctions in the form of a statutory order or to enact administrative rules.

Second, both Presidential Decrees and Ordinances are delegation orders as stipulated in Articles 75 and 95 of the Constitution. However, Presidential Decrees only differ in that they undergo deliberation by the State Council in the enactment process, which is insufficient to be based on different legal effects. Therefore, if the disciplinary disposition standards in the form of Presidential Decree are deemed as a legal order, it would be logical consistency to regard the disposition standards as stipulated by Ordinance of the Ministry of Maritime Affairs as a legal order.

Third, since the disciplinary disposition directly affects the rights and obligations of the people, it cannot be said that it is merely an internal administrative standard for administrative affairs.

Fourth, since the previous sanctions are not clearly defined or uniformly, there is a lack of concrete validity, so the court is bound by the granting of the legal nature, making it difficult to protect the rights and interests of the people, so there is a practical need to deny the legal nature. However, it is also necessary to pay attention to the fact that most of the sanctions are clearly subdivided and more reasonable sanctions are possible in order to ensure the concrete validity.

Fifth, even if the court denies the legal nature of the disciplinary measure, which is a Ministerial Ordinance, in a specific case, it is not immediately null and void, but the relevant administrative officer, regardless of the judgment, shall continue the same disposition as that in the previous case according to the standards of the Ministerial Ordinance in question in accordance with the obligation to comply with the laws and regulations, and the court shall cancel the administrative disposition after again confirming that the Ministerial Ordinance is not in compliance with the administrative rules, which will eventually undermine legal stability and predictability. Therefore, it would be more desirable to exclude the effect by declaring the invalidation of the disciplinary measure, which is a Ministerial Ordinance, on the grounds of the scope of delegation or excessive legislation, in the event that it is not consistent with the Constitution or where the specific and reasonable disposition standards can not be drawn by the interpretation of the law.

In conclusion, in full view of these points, the enforcement rules, which have determined punitive disposition by delegation of superior laws, correspond to delegation orders stipulated in Article 95 of the Constitution, and their contents are also related to matters that have a direct influence on the rights and duties of the people. Therefore, rather than merely merely a general rule for administrative affairs inside an administrative agency, it shall be deemed as an order for regulation that externally detains citizens or courts.

C. Next, in a case where the period of validity of an administrative disposition is determined for the legal interest seeking the revocation of a disciplinary disposition after the lapse of the period of sanctions, the effect of such administrative disposition becomes extinct after the lapse of the period. Thus, there is no legal interest to seek the revocation of such disposition, unless there are other circumstances to deem that any legal interest is infringed due to the remaining external form of the disposition after the lapse of the period (see Supreme Court Decisions 90Nu3119, Oct. 23, 1990; 2004Du9012, Nov. 25, 2004, etc.).

However, with respect to the so-called aggravated disposition, which becomes the prerequisite or aggravation of a new disciplinary measure in the future, the previous Supreme Court Decisions 90Nu3119 Decided October 23, 1990 and other previous Supreme Court Decisions 90Nu3119 Decided October 23, 1990, where an aggravated cause is provided for in the Act or Presidential Decree, there is a risk of future aggravated disposition. Thus, even if the period of sanctions prescribed in the disciplinary measure has expired, there is a legal interest in seeking cancellation of the disposition in order to eliminate risks or apprehensions arising from legal status (Supreme Court Decisions 91Nu3512 Decided August 27, 1991; 98Du13997 Decided February 5, 199; 209Du13997 Decided March 25, 2005; 309Du14106 Decided March 25, 2005). Thus, if an aggravated cause is provided for in the Ordinance of the Ministry of Administration and Home Affairs, it has no legal basis for aggravated disposition.

However, as seen earlier, if the disciplinary disposition standard prescribed by Ordinance is viewed as a legal order that ought to be recognized as an external binding force, even if the grounds for aggravated sanctions are prescribed by Ordinance, it shall be deemed an order that externally detains the people or the court, and therefore, as such, as the grounds for aggravated sanctions are prescribed by Act or Presidential Decree, it shall be deemed that there exists a legal interest in seeking the cancellation of the prior disposition even after the expiration of the period of sanctions.

In addition, in real terms, it is difficult to understand that the existence of legal interest to seek the revocation after the lapse of the period of sanctions is different from that of the citizens who are the other party to the disposition, even though the grounds for aggravated sanctions are prescribed by Presidential Decree or Ordinance, or are prescribed by Ordinance, or are likely to suffer disadvantages therefrom.

D. As to the instant case, Article 10 [Attachment 2] of the Enforcement Rule of the Act on Assessment of Impacts of Works on Health, Environment, Traffic, Disasters, etc. [Attachment 2] of the same Act is a Ordinance of the Ministry which set the punitive disposition standards pursuant to delegation of Article 12(2) of the same Act, and is not merely merely merely an internal administrative agency's internal business management rules, but also an externally effective legal order which is binding upon the citizens or the court. The Plaintiff, as a result of concluding a new environmental impact assessment agency contract during the period of suspension of business under the judgment of the court below and performing its agency business, may be subject to an aggravated disciplinary measure under the above [Attachment 2] 2. 2. 2. (11) of the Enforcement Rule of the Act on Assessment of Impacts of Works of Impacts of Works on Environment, Traffic, Disasters, etc.

Unlike this, the judgment of the court below which held the lawsuit of this case unlawful on the ground that the period of business suspension for the plaintiff was expired, and that the remaining disposition of this case cannot be deemed to constitute an infringement of any legal interest of the plaintiff due to its appearance.

For the foregoing reasons, I express my Concurrence with the Majority Opinion.

Chief Justice Lee Yong-chul (Presiding Justice)