2012Nu3116 Revocation of disposition to terminate the contract for occupancy;
O00 Stock Company
Law Firm In-Law Firm
Attorney Yang Hong-hoon
An incorporated association
Law Firm Han-gu, Attorney Han-chul
Daejeon District Court Decision 2012Guhap2568 Decided November 21, 2012
May 9, 2013
June 13, 2013
1. The plaintiff's appeal is dismissed.
2. The costs of appeal shall be borne by the Plaintiff.
The judgment of the first instance is revoked. The defendant's disposition to terminate the occupancy contract to the plaintiff on June 1, 2012 shall be revoked.
1. Details of the disposition;
A. Status of the parties
According to Article 45-3(1) of the former Act on Promotion of Industrial Cluster Development and Factory Establishment (amended by Act No. 10892, Jul. 21, 201; hereinafter referred to as the “Industrial Cluster Act”), the Plaintiff is a company established to engage in food processing and sales business, and the Defendant was entrusted with the management of the Daejeon Industrial Complex (hereinafter referred to as the “instant complex”) located in Daejeon Metropolitan City, Daejeon Metropolitan City as a company established to develop and manage industrial complexes and to support the industrial activities of those enterprises.
B. Application for occupancy contract by the plaintiff
On July 201, the Plaintiff filed an application with the Defendant for occupancy contract that he/she will engage in other meat processing and storage business producing juice in Daejeon-dong dialogue **-* land 3,300 square meters and its ground building 2,621.44 square meters (hereinafter referred to as “factory of this case”) located within the instant complex, and submitted to the Defendant a business plan containing the investment scale, production process explanation, specifications, production facilities, factory layout drawings, etc.
(c) Conclusion of occupancy contracts;
After examining the aforementioned business plan, etc. on July 29, 201, the Defendant concluded an occupancy agreement with the Plaintiff pursuant to Articles 38(1) through (3) and 38-2(1) of the Industrial Cluster Act and Articles 34 and 35 of the Enforcement Rule of the same Act (hereinafter “instant occupancy agreement”). At the time, the Defendant notified the Plaintiff of the completion report of the establishment, etc. of a factory within two months when the establishment of a factory was completed.
D. Plaintiff’s business report, etc.
On October 28, 2011, the plaintiff filed a report on food service facility business and food transportation business (hereinafter referred to as "food service facility business, etc.") to change the location of the plaintiff's headquarters to the factory of this case.
(e) Termination of occupancy contracts;
On February 28, 2012, the Defendant issued a corrective order to the effect that, although the Plaintiff was approved as the type of manufacturing and manufacturing business, it is currently running as a logistics sales business, it shall be operated according to the first occupancy contract business plan, and if it is not performed, it may be terminated pursuant to Article 42(1)5 of the Industrial Cluster Act. On March 22, 2012 and April 4, 2012, the Defendant notified the Plaintiff that the occupancy contract may be terminated if the contract is not operated as at the time of the first occupancy contract, and urged the Plaintiff to implement the corrective order.
On June 1, 2012, the Defendant ordered the Plaintiff to use the instant factory as a type of business other than that approved in the occupancy contract, but failed to comply therewith, and notified the Plaintiff of the instant disposition, stating that the instant occupancy contract should be terminated as of June 4, 2012 pursuant to Article 42 of the Industrial Cluster Development Act.
(f) Business types eligible for occupancy under the basic management plan;
On the other hand, the management master plan of the complex of this case, which was enforced from June 1, 2009 after the Daejeon Metropolitan City Mayor announced around 2009, provides that "type of business excluding some types of business restricted to occupancy among the relevant classification of general manufacturing business (10 to 33) under the Korean Standard Industrial Classification Table," "knowledge-based industry under Article 6 (2) of the Enforcement Decree of the Industrial Cluster Act, and information and communication industry under Article 6 (3) of the Enforcement Decree of the Industrial Cluster Act" as the category of
[Reasons for Recognition] A. A. 1 to 4, 6, 11 (including branch numbers; hereinafter the same shall apply), 2
Each entry of evidence, the purport of the whole pleading
2. Whether the disposition is lawful;
A. Summary of the plaintiff's assertion
(1) The Plaintiff’s head of Seo-gu Daejeon Metropolitan City operated the above business in the instant plant as the Plaintiff received a report on the business, such as meal service facility food sales in the instant plant. Since group meal service facilities sales business, etc. are incidental to meat processing and storage business, it cannot be deemed that the Plaintiff violated the occupancy contract of this case.
(2) The Plaintiff was subject to prior review by the Dae-gu Office of Daejeon Metropolitan City and the Defendant that food sales business of meal service facilities, etc. in the instant complex, and completed a business report and completed a large number of business and manufacturing facilities in the instant complex, but the Defendant’s disposition of this case violates the principle of trust protection.
(3) Although there was a type of business that is engaged in a business similar to the Plaintiff within the instant complex, it is unlawful to take the instant disposition against the Plaintiff against the principle of equality.
(4) In light of the Plaintiff’s degree of violation, the instant disposition is unlawful as it violates the principle of proportionality.
(5) On August 2, 2012, the Plaintiff received a corrective order, completed the establishment of a manufacturing factory pursuant to the instant occupancy agreement, and the logistics business is expected to be cancelled even in the category of business subject to the restriction on occupancy in the instant complex in the future. Thus, the instant disposition should be revoked.
B. Relevant statutes
It is as shown in the attached Form.
(1) Whether there is a ground for disposition
(A) Facts of recognition
On July 4, 2011, the Plaintiff entered into a lease contract for the instant factory with △△△△△△△ Co., Ltd., the owner of the instant plant, while engaging in the distribution and distribution of large food materials in the Dongdaemun-gu, Daejeon.
On July 201, the Plaintiff submitted a business plan to the Defendant upon filing an application for occupancy in the instant complex. The business plan stated that he/she will engage in other meat processing and storage business that produces main block at the instant plant. On the other hand, in the factory placement plan attached to the business plan, the Plaintiff stated that he/she is a plan to install and operate the instant factory as a raw material warehouse, a place of work, an office, and a cooling house (free storage) storage facility.
After concluding the instant occupancy agreement with the Defendant on July 29, 201, on October 28, 201, the Plaintiff reported the business of meal service facility food sales, etc. to change the location of the Plaintiff’s headquarters to the factory of the instant case to the head of Seo-gu Daejeon Metropolitan City on October 28, 201, and commenced that business.
Meanwhile, the Plaintiff submitted to the Defendant a report on completion of the establishment of the instant plant on August 2, 2012, on the ground that “the instant occupancy contract with the Plaintiff was terminated on August 10, 2012,” which was submitted by the Plaintiff at the time of filing an application for occupancy contract, the Plaintiff’s report on completion of the establishment of the instant factory was rejected.”
In the instant plant used by the Plaintiff, large amounts of foodstuffs, such as grains, meat, etc., necessary for the business of food service facility business, are stored, and meat processing facilities for the main block production are complete, but the return of the Defendant’s report on the establishment of a factory is not operated.
[Ground of recognition] Evidence A 2-2, Evidence A 4, 12-15, and 17, and the witness Kim
tin Partial Testimony, On-site Inspection Results of Party Deliberation, the purport of the whole pleadings
(B) Determination as to whether a contract for occupancy was breached
Article 42 (1) 5 of the Industrial Cluster Act provides that "a contract may be terminated in the event of a violation of an occupancy agreement under Article 38 of the Industrial Cluster Act," and Article 38 (2) of the Industrial Cluster Act and Article 35 (1) 2 of the Enforcement Rule of the Industrial Cluster Act provide that "a contract for a new modification shall be concluded in the event of a change in the type of business."
The following circumstances revealed by the above facts, i.e., at the time of entering into a contract for occupancy of this case, the plaintiff entered into an occupancy contract for the above purpose, such as meat processing and storage business, but actually engaged in meal service facility business. The above meal service facility food sales business constitutes not "manufacturing business" under the Korean Standard Industrial Classification Table, but "doing and retail business" or "transport business", and i) the head of Taeok-gu accepted the plaintiff's "report on the business" by the defendant or the management agency of the complex of this case, it cannot be viewed that the plaintiff was permitted to move into the factory of this case within the above complex of this case. The plaintiff argued that the food sales business of this case is merely a business incidental to meat processing and storage business, but it is reasonable to interpret that the plaintiff violated the purpose of occupancy contract for food distribution business other than the food distribution business of this case by revitalizing the purpose of storage and distribution business of this case, such as food distribution business of this case.
Therefore, this part of the plaintiff's assertion is without merit.
(2) Whether it violates the principle of trust protection
In general, in administrative legal relations, in order to apply the original rule for the protection of trust to the acts of an administrative agency, first, the administrative agency's public explanation that is the object of trust to an individual should be given to the individual, second, the administrative agency's trust in the statement of opinion should not be attributable to the individual. Third, the individual should have trusted and trusted that the statement of opinion of the administrative agency is justifiable; third, the administrative agency should have conducted any act corresponding thereto; fourth, the administrative agency should have caused a disposition contrary to the above statement of opinion to infringe the individual's interest; last, the administrative disposition in accordance with the above statement of opinion should not be likely to seriously undermine the public interest or legitimate interests of a third party (see, e.g., Supreme Court Decision 200284, Sept. 28, 2001).
Therefore, I first examine whether there was a defendant's public opinion.
As seen earlier, the Plaintiff’s completion of the report on the business of meal service facility sales to the head of Seo-gu Daejeon Metropolitan City on October 28, 2011, but the head of Seo-gu Daejeon Metropolitan City received the Plaintiff’s business report pursuant to Article 37(4) of the Food Sanitation Act and Article 25 of the Enforcement Decree of the same Act, and the Defendant cannot be deemed to have expressed the Plaintiff’s public opinion that allowed the Plaintiff to move into the factory that operates meal service facility sales business within the instant complex.
또한 갑 2호증의 2의 기재와 당심 증인 김◎의 일부 증언만으로는 피고가 원고 에게 이 사건 단지 내에서 집단급식소 식품판매업 등을 영위하는 공장입주를 허용하는 내용의 공적 견해를 표명하였다고 인정하기에 부족하고, 달리 이를 인정할 만한 증거 가 없다.
Therefore, the plaintiff's assertion that there was a public opinion expressed by the defendant is without merit, without examining the different points.
(3) Whether the principle of equality is violated
According to the result of fact-finding by the court of the first instance, even though it is recognized that a food sales business, etc. is operated within the instant complex, the above company is considerably different from the Plaintiff in its main contract, occupancy time, area of business, etc., and the management master plan of the instant complex applied to the above company is deemed different from the Plaintiff. Thus, the instant disposition against the Plaintiff cannot be readily concluded as unlawful compared to the case of the above company. Accordingly, this part of the Plaintiff’s assertion is without merit.
(4) Whether the principle of proportionality is violated
In light of the above, the legislative purport of the Industrial Cluster Act, the plaintiff's business purpose, and other facts that the plaintiff failed to comply with the corrective order several times, and the management master plan of the industrial complex of this case provides that "type of business excluding some types of business restricted to occupancy" among the relevant classification of general manufacturing business (10~33) under the Korean Standard Industrial Classification Table, and "type of knowledge-based industry under Article 6 (2) of the Enforcement Decree of the Industrial Cluster Act and Article 6 (3) of the Information and Communications Technology Industry Act" as the main business of the industrial complex of this case, and it is difficult to view the disposition of this case as a deviation from discretion and abuse in violation of the principle of proportionality. Therefore, this part of the plaintiff's assertion is without merit.
(5) Other allegations
(1) The disposition of this case is retroactively unlawful solely on the ground that there is no need to maintain the original disposition or that there is a change of circumstances, or that there is a need for the important public interest, an administrative agency may withdraw or change the previous disposition, and therefore, the other party may have the right to withdraw or modify the new disposition, and as the other party may have the right to seek withdrawal or change of the disposition, it is acknowledged that a person who was the other party to the previous disadvantage can seek the withdrawal or change of the disposition against the administrative agency.
Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.
Notarial Award (Presiding Judge)
Excursion ship poles
1) However, if the food transportation business operated by the plaintiff is combined with the food sale business of meal service facilities under the Korean Industrial Standards Classification Table, the principal activity of a non-permanent person;
Food sales business is included in the classification of ‘cambling and retail business' to which the food sales business belongs, and the above food transportation business is grouping food sales business and reading.
(2) If operated, it shall be included in the classification of "traffic business".
2) In this Section, wholesale and retail activities for resale to buyers without altering all new products or used goods purchased and sold in this Section:
(iii) The General Classification refers to the activities of a passenger and cargo transport business, warehouse business, and other services related to transport by various transport facilities, in which the buyer and the seller act on behalf of the buyer and the seller for the buyer and the seller;
(c)transport activities combined with specific industrial activities are classified into other industries depending on the main activities of that industry, but transport for the same enterprise;
If a business entity engaged in operation independently, it shall be classified into transportation business.
Related Acts and subordinate statutes
◈ 구 산업집적활성화 및 공장설립에 관한 법률(2011. 7. 21. 법률 제10892호로 개정되기 전의 것)
Article 1 (Purpose)
The purpose of this Act is to contribute to the sound development of the national economy through continued industrial development and balanced regional development, by promoting industrial clustering, supporting the smooth establishment of factories, and systematically managing industrial sites and industrial teams.
The definitions of terms used in this Act shall be as follows:
1. The term "factory" means manufacturing facilities, such as buildings or structures, and machinery and equipment forming a manufacturing process for goods, and such manufacturing facilities;
For manufacturing business prescribed by Presidential Decree with ancillary facilities (hereinafter referred to as "manufacturing facilities, etc.")
one place of business prescribed by Presidential Decree.
Article 38 (Contracts, etc. for Occupancy)
(1) A person who conducts or intends to conduct manufacturing business in an industrial complex shall manage agencies, as prescribed by Ordinance of the Ministry of
The contract for the occupancy (hereinafter referred to as "occupant contract") shall be entered into with the Corporation: Provided, That the Presidential Decree shall apply.
this shall not apply to cases prescribed by the Regulations.
(2) Occupant enterprises and support institutions intend to change matters prescribed by Ordinance of the Ministry of Knowledge Economy among occupancy contracts.
(2) In the case of a change, a new change contract shall be entered.
Article 42 (Termination, etc. of Occupancy Contracts)
(1) Where an occupant enterprise or support institution falls under any of the following subparagraphs, a management agency shall substitute therefor:
Where an order for correction is not complied with within a period prescribed by Ordinance of the Ministry of Government Administration and Home Affairs, the occupancy agreement shall be issued.
(2) may terminate the contract.
1. A factory, etc. within a period prescribed by Ordinance of the Ministry of Knowledge Economy after concluding an occupancy agreement;
In the case of failure to commence construction;
5. Where an occupant enterprise breaches an occupancy agreement pursuant to Articles 38 and 38-2;
◈ 구 산업집적활성화 및 공장설립에 관한 법률 시행령(2012.7. 20. 대통령령 제23966호로 개 정되기 전의 것)
Article 2 (Scope of Factory)
(1) The Industrial Cluster Development and Factory Establishment Act (hereinafter referred to as the "Act") pursuant to subparagraph 1 of Article 2 of the Industrial Cluster Development and Factory Establishment Act.
The scope of manufacturing business under the Standard Industrial Classification publicly announced by the Commissioner of the Statistics Korea pursuant to Article 22 of the Statistics Act.
for manufacturing business.
(2) Matters included in the scope of a factory under subparagraph 1 of Article 2 of the Act shall be as follows:
1. Manufacturing facilities necessary for conducting the manufacturing business (including facilities for processing, assembling, and repairing goods; hereinafter the same shall apply);
(c) and experimental production facilities;
○ Enforcement Rule of the former Industrial Cluster Development and Factory Establishment Act (amended by Ordinance of the Ministry of Knowledge Economy No. 271, Oct. 5, 2012)
Article 35 (Modification of Terms and Conditions of Occupancy Contracts)
(1) "Matters prescribed by Ordinance of the Ministry of Knowledge Economy" in Article 38 (2) of the Act means the following matters:
2. Types of business (referring to the types of business referred to in Article 18-2 (4) of the Decree in cases of factories) or details of business referred to in Article 42 (Period of Termination of Occupancy Contracts);
(1) "Justifiable grounds" in Article 42 (1) 1 of the Act means any of the following grounds:
1. Permission for use prior to authorization for completion under Article 37 of the Enforcement Decree of the Industrial Sites and Development Act;
Where it is impossible to use the land for a factory, such as the absence thereof, delays.
2. In cases where the commencement of a factory is inevitably delayed due to reasons not attributable to the occupancy contractor.
If the holder of interest is recognized;
(2) "Period prescribed by Ordinance of the Ministry of Knowledge Economy" in Article 42 (1) 1 of the Act means two years.
Food Sanitation Act
Article 36 (Standards for Facilities)
(1) A person who intends to conduct the following business shall have facilities meeting the facility standards prescribed by Ordinance of the Ministry of Health and Welfare:
1. Manufacturing, processing, transporting, selling and preserving foods or food additives;
(2) The detailed types and scope of business under each subparagraph of paragraph (1) shall be prescribed by Presidential Decree.
Article 37 (Business Licenses, etc.)
(4) A person who intends to conduct any business prescribed by Presidential Decree among the businesses referred to in the subparagraphs of Article 36 (1) shall be prescribed by Presidential Decree.
Korea Food and Drug Administration or a Special Self-Governing Province branch by type of business or place of business.
G. He/she shall report to the head of the Si/Gun/Gu. Important matters prescribed by Presidential Decree among the reported matters.
The same shall also apply to the modification or closure of the matters.
c. Manufacturing business;
10. Manufacture of foodstuffs;
101. Slaughter, meat processing and storage and disposal business;
1012. meat processing and storage business
10129 Other meat processing and storage and disposal business (other land, excluding gold and birds)
Processing or storing of scrapers by freezing, drying, smoking, salting, cooking, and other methods;
G. Wholesale and retail business 2)
46. Wholesaleing and brokerage business;
462. Wholesale business for industrial agricultural, livestock and wild animals;
4620. Industrial and animal wholesale business
46201. Grain wholesale business
463. Food, beverage and tobacco wholesale business
4631. Non-processed foods wholesale business
46311. Fruits and organic wholesale business
46312. Wholesale business of meat
46313. Wholesale business of fishery products;
46319 Other non-processed food wholesale business
4632. Wholesale business of processed food
46321. Processed meat products (foods made by slaughter and processing livestock and other land animals)
referring to the industrial activities in wholesale market)
46322. Wholesale business of processed fishery products; 4632. Food wholesale business of processed fishery products, such as dissolved and private goods
The term "business activities" means business activities)
4633. Wholesale business of beverages and tobacco;
472. The retail business of beverages, foodstuffs and tobacco;
4721. Retail trade of foodstuffs
4722. Retail business of beverages and tobacco;
(H) Transportation business 3);
49. Land transportation and pipeline transportation;
493. Road freight transport business;
52. Warehouse and transport-related service business;
521. Custody and warehousing business;