(B)Revocation of a penalty surcharge of 2017Nu1068

Poddi Shipping Co., Ltd.

Maritime Affairs and Fisheries Office

Jeonju District Court Decision 2016Guhap794 Decided December 22, 2016

November 13, 2017

January 15, 2018

1. Revocation of the first instance judgment.

2. The plaintiff's claim is dismissed.

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

1. Purport of claim

The defendant's disposition of imposing a penalty surcharge of KRW 600,000 against the plaintiff on March 16, 2016 shall be revoked.

The same shall apply to the order.

1. Details of the disposition;

The reasoning for this part of the judgment of the court is the same as that of the judgment of the court of first instance, and thus, this part is cited in accordance with Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

A. The defendant's main defense

The plaintiff sought the revocation of the disposition of this case by the lawsuit of this case, but in substance, the plaintiff asserts only the illegality of the business improvement order of this case. As to the business improvement order of this case, the litigation of this case is unlawful, since the period of filing the lawsuit of this case exceeds the period of filing the

B. Determination

As seen earlier, the instant disposition imposed a penalty surcharge of KRW 600,00 on the Plaintiff based on Article 19(1)10 of the Marine Transportation Act for the purpose of securing the effectiveness of administration after the Defendant issued an order to improve the quality of passenger transport services and promoting public welfare separate from the Defendant’s issuance of an order to improve the business of this case on the ground that the Plaintiff failed to comply with the instant order to improve the business of this case, and then undergoing a prior notification procedure of the administrative disposition on the ground that the Plaintiff imposed a penalty surcharge of KRW 600,000 on the Plaintiff on the ground of

On the other hand, the defendant's assertion to the effect that the lawsuit seeking the cancellation of the disposition of this case is unlawful because the period for filing a lawsuit against the order to improve the business of this case was too excessive, is subject to a judgment on the merits of this case, which is the purport that the plaintiff cannot dispute the validity of the disposition of this case only for the reason that the defects of the order to improve the business of this case occurred. Therefore, the defendant's

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant order for business improvement was issued to revise the business plan to change the place of departure from a place of departure, which goes beyond the scope of modification of the business plan prescribed in Article 12 of the former Marine Transportation Act (amended by Act No. 14746, Mar. 21, 2017) and does not aim at promoting public welfare. Thus, the instant order for business improvement issued by the Defendant is a deviation or abuse of discretionary authority. Accordingly, the instant disposition based on the nonperformance of the instant order for business improvement is unlawful.

B. Determination

1) First, the Plaintiff’s assertion that the instant disposition is disputed solely on the grounds of the defect in the instant disposition, without asserting the defect in the instant disposition itself, is apparent by itself. As such, we examine whether the instant disposition can be asserted on the sole ground of the defect in the instant order for business improvement.

Where two or more administrative dispositions are continuously or gradually made, when one legal effect of the preceding dispositions and the subsequent dispositions are completed by combining them, the defect if there is a defect in the preceding dispositions shall be succeeded to the subsequent dispositions. In such a case, even if the effect of the preceding dispositions arises due to a defect in the preceding dispositions, the validity of the subsequent dispositions may be asserted on the grounds of the defect in the preceding dispositions.

However, in cases where the preceding and subsequent dispositions independently cause a separate legal effect, the validity of the preceding dispositions cannot be asserted on the ground of the defect in the preceding dispositions unless there are special circumstances, unless the defect in the preceding dispositions becomes null and void. However, even in cases where the preceding dispositions and subsequent dispositions aim at a separate effect independently, it would be harsh that the non-existence of the preceding dispositions and their binding force exceed the tolerance limit. If the result is not foreseeable to the parties, the binding force of the subsequent dispositions cannot be acknowledged in light of the ideology of the Constitution guaranteeing the right to trial of the citizens (see, e.g., Supreme Court Decisions 2004Du14915, Apr. 15, 2005; 2016Du4938, Jul. 18, 2017). This case’s order and subsequent dispositions are different from those of the Plaintiff’s order and its binding force, which are different from those of the instant case’s order and are different from those of the instant case’s order and are different from those of the instant case’s order.

(ii) the facts of recognition

The reasoning for this part is that the court's reasoning is the same as the corresponding part of the reasoning of the judgment of the court of first instance (from No. 4 of the judgment of the court of first instance to No. 14 to No. 5 of the Civil Procedure Act), except that the "Jindo Shipping Co., Ltd. (hereinafter referred to as "Jindo Shipping") is deemed to be a "Jindo Shipping Co., Ltd. (hereinafter referred to as "Jindo Shipping")" in the fourth to No. 14 to 15 of the judgment of the court of first instance. Thus, this part is cited in accordance with Article 8 (2

3) In order for a defective administrative disposition to be null and void as a matter of course, it must be objectively obvious that the defect is a serious violation of the important part of the law and objectively. In determining whether the defect is significant and obvious, the purpose, meaning, function, etc. of the law should be examined from a teleological perspective, and at the same time, reasonable consideration should be made on the characteristics of the specific case itself. In a case where an administrative agency has taken an administrative disposition by applying a certain provision to a certain legal relation or factual relationship, the legal doctrine in which the provision of the law is not applicable, clearly stated that there is no room for dispute over the interpretation thereof, and thus, if an administrative agency has taken the disposition by applying the above provision, it shall be deemed that the defect is significant and obvious. However, if there is room for dispute over the interpretation because the legal principles that the provision of the law is not applicable to the legal relation or factual relations are not clearly revealed, it is merely erroneous as to the fact of the disposition requirements (see, e.g., Supreme Court Decision 200Du2825, Sept. 24, 2009)

Article 12 (1) of the former Marine Transportation Act provides that where a passenger transportation service provider intends to change his/her service plan, he/she shall file a prior report with the Minister of Oceans and Fisheries, as prescribed by Ordinance of the Ministry of Oceans and Fisheries, and Article 12 (2) of the same Act provides that a person who has obtained a license for coastal passenger transportation services

1. Article 14 subparag. 1 of the former Marine Transportation Act provides that the change of a business plan may be ordered to the passenger transport service provider if it is deemed necessary to improve the quality of passenger transport services and to improve public welfare. In light of the form and content of the aforementioned legal provisions, the subject of the report or authorization for the change of the business plan and the need to improve public welfare, it is difficult to find the same ground to view that Article 14 of the former Marine Transportation Act grants broad discretion to the Plaintiff on the ground that the change of the business plan from 0-year period to 10-year period to 10-year period to 10-year period to 6-year period to 10-year period to 6-year period to 6-year period to 6-year period to 10 days to 10-year period to 10 days to 6-year period to 10 days to 10 days to 10-year period to 10 days to 10 days to 20-year period to 20 days to 20 days to ever.

Therefore, the plaintiff cannot dispute the validity of the disposition of this case, which is a subsequent disposition, on the grounds of defects in the business improvement order of this case, which is a prior disposition.

4. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is unfair with the conclusion different. Thus, the judgment of the court of first instance is revoked and the plaintiff's claim is dismissed as per Disposition.

The presiding judge, judge, Yellow-gu

Judges Song-ho

Judges Socios