[edit] Supreme Court Decision 2000Du3337 delivered on April 13, 2001 [Revocation of Disposition to revoke Business License]
【Main Issues】
[1] Whether the disposition to revoke the business permission of amusement center industry under the previous Public Sanitary Act without a hearing can be deemed legal (negative with qualification)
[2] In the case of an infringing administrative disposition, what criteria should be applied in judging "whether to be reasonably deemed that there are grounds that the hearing of opinions is impractical or the hearing is clearly unnecessary" under Article 21 Paragraph (4) Item 3 of the Administrative Process Act, providing the conditions where a hearing may be excluded, and whether the infringing administrative disposition made without a hearing due to the absence of the party subjected to the administrative disposition on the date of the hearing can be deemed legal (negative)
[3]A case that in making the disposition to revoke the approval of an amusement center industry under the previous Public Sanitary Act, where notices of the hearing were sent twice and both were returned, the situation was determined as constituting a case where hearing may be omitted under the condition prescribed in Article 14 Paragraph (4) Item 3 of the Administrative Process Act, and thereby the disposition on such case finalized without a hearing on the grounds that the involved party was absent on the day of the hearing
【Summary of Decision】
[1] In view of Article 24 Item 1 of the previous Public Sanitary Act(repealed by the Public Sanitary Control Law No. 5839 of February 8, 1999) and Article 22 Paragraph (1) Item 1, Article 22 Paragraph (4), Article 21 Paragraph (4), Articles 28, 31, 34 and 35 of the Administrative Process Act, in order to revoke the approval of an amusement center industry, an administrative agency must hold a hearing, but in the event of the situations described in Article 22 Paragraph (4) and Article 21 Paragraph (4) of the Administrative Process Act, the hearing may be omitted. The presiding authority of the hearing designated by the administrative agency shall preside over the hearing; then create a record of the hearings including the attendance of parties, the summary of the statements and submitted evidence, the presiding authority's opinion, etc.; after the completion of the hearing, the record of the hearing, etc. must be submit to the administrative agency without delay, and; if the administrative agency decides that there is a sufficient reason for an administrative disposition after the agency reviews the records of the hearing, the agency shall make a disposition strongly reflecting the results of the hearing. In light of the purpose of a hearing system, which is taking into consideration the possibility of the need to correct illegal actions, and enforcing discretion and appropriateness to a disposition by allowing the businessman/businesswoman an opportunity to present excuses and favorable information for themselves, it is mandatory for the administrative agency to conduct a hearing when making an infringing administrative disposition, except for the cases where the hearing is allowed to be omitted. Therefore, any disposition made without this process shall be deemed as an illegal disposition, and thereby it shall be subjected to revocation.
[2] Even though Article 14 Paragraph (4) Item 3 of the Administrative Process Act stipulates "when reasonably deemed that there are grounds that the hearing of opinions is impractical or the hearing is clearly unnecessary considering the nature of the dispositions concerned" as reasons where omitting the hearing process is possible when performing an infringing administrative disposition, 'whether there are grounds that the hearing of opinions is impractical or the hearing is clearly unnecessary' prescribed herein, must be determined by the nature of the administrative disposition concerned, and not by whether the hearing notice had been returned nor by the method of notification of the hearing, etc. In addition, the fact that the party concerned with the administrative disposition had been absent on the date of the hearing notified as such, alone does not justify the administrative agency's infringing administrative disposition conducted without having opened the hearing required by the relevant Act or subordinate statutes. Therefore, an infringing administrative disposition without having undergone the process of a hearing on the grounds that the notice of the hearing had been returned or on the grounds that the party concerned with the administrative disposition had been absent on the day of the hearing shall be determined as unlawful.
[3] The decision of the court below was reversed in a case where, in making the disposition to revoke the approval of an amusement center industry under the previous Public Sanitary Act(repealed by Article 2 of Addenda of the Public Sanitary Control Law No. 5839 of February 8, 1999), when notices of the hearing were sent twice and both were returned, the situation was determined as constituting a case where hearing may be omitted under the condition prescribed in Article 14 Paragraph (4) Item 3 of the Administrative Process Act, and thereby the disposition on such case finalized without a hearing on the grounds that the involved party was absent on the day of the hearing.
【Reference Provisions】[1] Paragraph (1) of Article 23 of the old Public Sanitary Act (repealed by Article 2 of Addenda of the Public Sanitary Control Law No. 5839 of February 8, 1999) (see Paragraph (1) of Article 11 of the Public Sanitary Control Law), Item 1 of Article 24 of the old Public Sanitary Act(see Article 12 of the Public Sanitary Control Law), Paragraph (1) and Paragraph (4) of Article 21, Item 1 of Paragraph (1) and Paragraph (4) of Article 22, Article 28, Article 31, Article 34, and Article 35 of the Administrative Process Act, Article 1 and Article 19 of the Administrative Litigation Act / [2] @ Paragraph (1) and @ Item 3 of Paragraph (4) of Article 21 of the Administrative Process Act, Article 1 and Article 19 of the Administrative Litigation Act / [3] Paragraph (1) of Article 23 of the old Public Sanitary Act (repealed by Article 2 of Addenda of the Public Sanitary Control Law No. 5839 of February 8, 1999) (see Paragraph (1) of Article 11 of the Public Sanitary Control Law), Item 1 of Article 24 of the old Public Sanitary Act(see Article 12 of the Public Sanitary Control Law), Paragraph (1) and @ Item 3 of Paragraph (4) of Article 21, and Paragraph (1) and @ Item 1 of Paragraph (4) of Article 22 of the Administrative Process Act, Article 1 and Article 19 of the Administrative Litigation Act
Article 26 of the previous Public Sanitary Act (repealed by Article 2 of Addenda of the Public Sanitary Control Law No. 5839 of February 8, 1999) (an administrative disposition) (1) The Mayor of Si/Gun/Gu may, when a business operator, etc. violates this Act or an order given under this Act, may order him to revoke the business approval or close down, or suspend his business or manufacturing business, designating a period not exceeding 6 months. The same shall apply to the case of barber or beauty artist, when a certificate of barber or beauty artist is revoked or their business is suspended under Paragraph (2).
(2)~(6) <omitted>
Article 24 of the previous Public Sanitary Act (repealed by Article 2 of Addenda of the Public Sanitary Control Law No. 5839 of February 8, 1999) (Hearing) The Ministry of Health and Welfare, Mayor/Governor of Si/Do or the Mayor of Si/Gun/Gu shall hold a hearing in case where he/she intends to make the dispositions falling under any of the following items.
1. Order of revocation of a business approval or closure pursuant to Paragraph (1) of Article 23 or Paragraph (2) of Article 39.
2.~4. <omitted>
Article 21 of the Administrative Process Act (Advance Notification of Dispositions) (1) The matters of the following items shall be notified to parties in advance when administrative agencies are rendering dispositions to parties concerned imposing duties on them or restricting their rights or interests:
1. Title of the disposition
2. Full name or title, and domicile of parties concerned
3. The factual grounds for the disposition and the contents of the disposition and legal basis
4. Advice that the opinions may be submitted on the items of Item 3 above and the processing method when no opinions are presented
5. The title and address of the agency to which opinions may be submitted
6. Time limit for submission of opinions
7. Other necessary matters.
(2)~(3) <omitted>
(4) The notification requirement under Paragraph (1) may not apply to the cases falling under any of the following items:
1. When an urgent disposition is necessary for the safety and welfare of the general public
2. When, in case a certain disposition should be taken because any qualification required by any Act or subordinate statute is not equipped with or is extinguished, it proves that such qualification is not equipped with or is extinguished
3. When reasonably deemed that there are grounds that the hearing of opinions is impractical or the hearing is clearly unnecessary considering the nature of the dispositions concerned.
Article 22 of the Administrative Process Act (Hearing of Arguments) (1) In rendering dispositions, administrative agencies shall have a formal hearing in cases of the following items:
1. When a formal hearing is demanded by other Acts and subordinate statutes
2. <omitted>
(2)~(3) <omitted>
(4) When falling under any of items of Article 21 (4), or when parties have clearly indicated the intent to renounce the opportunity for submitting opinions, the hearing of opinions may not be conducted notwithstanding the provisions of Paragraphs (1) through (3) above.
Article 28 of the Administrative Process Act (Presider of Formal Hearing) (1) The formal hearing shall be presided over by a person designated from among personnel belonging to the administrative agency or persons qualified under the provisions of the Presidential Decree. The administrative agency shall endeavor for fairness in the designation of the presider of a formal hearing.
(2) The presider of a formal hearing shall independently execute his duties, and shall not receive any detriment to his status due to his execution of duties against his own will.
(3) The presider of a formal hearing appointed among the persons as prescribed by the Presidential Decree under Paragraph (1) shall be regarded as a public servant in the application of penal provisions under the Criminal act and other Acts.
Article 31 of the Administrative Process Act (Progression of Formal Hearing) (1) When commencing the formal hearing, the presider shall first explain the contents of the scheduled dispositions in question, their factual background, and legal basis, etc.
(2) Parties may submit their arguments, present documentary evidence and address questions to the relevant witness and expert witness.
(3) When parties submit written arguments, the contents shall be deemed as stated in person at the hearing.
(4) The presider may take measures necessary to ensure the prompt progressing and orderly maintenance of the formal hearing.
(5) When the presider of a formal hearing intends to continue the hearing, the parties shall be notified in writing of the date and time and the location of the next hearing: Provided, That for parties in attendance at the formal hearing, the date of the hearing concerned may be notified by oral statement.
Article 34 of the Administrative Process Act (Record of Formal Hearings) (1) The presider of the formal hearing shall maintain a record of hearings on the following matters:
1. Title
2. Personal information including affiliation, full name, etc. of the presider of the formal hearing
3. Domicile, full name or title, and the attendance of parties
4. Date and time and location of the formal hearing
5. The abstract of statements of parties and the evidence submitted
6. Whether or not the hearing is made open to the public; the grounds therefor under the proviso of Article 30 hereof
7.The abstract and appended evidence when engaged in the investigation of evidence
8. Views of the presider of the formal hearing
9. Other necessary matters.
(2) Parties may inspect and review the contents of the hearings record and may request a correction if they have an objection thereto.
Article 35 of the Administrative Process Act (Closing of Formal Hearings) (1) When deemed that the presentation of parties' arguments and investigation of evidence regarding the case have been completed, the presider of the formal hearing may conclude the hearing.
(2) When all or any of parties are not in attendance at the fixed date of the formal hearing without justifiable grounds or when they do not submit written arguments under of Article 31 Paragraph (3), the presider of the hearing may conclude the hearing without granting them the opportunity for submitting arguments and evidence.
(3) When all or parts of parties are unable to be in attendance at the date and time of the hearing or to submit written arguments under of Article 31 Paragraph (3) due to justifiable grounds, the presider of the formal hearing may set forth a considerable period and request them to submit arguments and evidence, and may conclude the hearing when the period concerned has expired.
(4) When concluding the formal hearing, the presider thereof shall submit the records of the hearing and other documents, etc. to administrative agencies without delay.
(5) Administrative agencies shall carefully review the records of the hearing and other documents, etc. submitted under Paragraph (4) above, and if deemed reasonable, the results of the hearings shall be positively reflected in rendering dispositions.
Article 1 of the Administrative Litigation Act (Purpose) The purpose of this Act is to relieve citizens from the infringement of their rights or interests by the illegal dispositions of administrative agencies and the exercise or non-exercise of public power, and settle properly disputes over the rights involved in public law or the application of law, through administrative litigation procedures.
Article 19 of the Administrative Litigation Act (Objects of Revocation Litigation) The disposition, etc. shall be subject to a revocation litigation: Provided, That in case of a litigation instituted to seek the revocation of an adjudication, it is permitted only when a reason exists that the adjudication itself has a proper illegality.
【Reference Cases】[1] Supreme Court Decision 83Nu14 delivered on June 14, 1983 (Gong1983, 1100), Supreme Court Decision 91Nu971 delivered on July 9, 1991 (Gong1991, 2167), Supreme Court Decision 91Nu11575 delivered on February 11, 1992 (Gong1992, 1040), Supreme Court Decision 99Du5870 delivered on November 14, 2000 (Gong2001Sang, 56)
【Plaintiff, Appellant】 Suh Dong-ho (Attorney Chung Gi-seung, Counsel for plaintiff-appellant)
【Defendant, Appellee】Chief Officer of Jongno-Gu District Office in Seoul
【Court of First Instance】 Seoul Administrative Court Decision 99Gu4630 delivered on August 17, 1999
【Court of Second Instance】 Seoul High Court Decision 99Nu1099 delivered on April 12, 2000
【Disposition】 The judgment of the court below shall be reversed and the case shall be remanded to Seoul High Court.
【Reasoning】 The grounds for appeal are examined as follows.
1. According to the reasoning stated in the judgment, the court below has found the following facts: when the plaintiff was managing the amusement center business, he allow his clients to utilize facilities at amusement center in conducting acts of deception; around December 1998, the defendant sent a hearing notice to the plaintiff a total of two times to the plaintiff's place of address and to the address of the amusement center; however, they were returned due to the recipient's absence or no residence at the address; thereby, in accordance with Article 14 Paragraph (4) of the Administrative Process Act, on December 28 of the same year, a hearing notice(expected date of hearing is 11:00 January 21, 1999.) had been announced; as the plaintiff did not show up on the day of the hearing, on January 25, 1999, the defendant made a disposition to revoke the approval of the plaintiff's amusement center business without having conducted a hearing. In light of these facts, the court below held that the return of the two hearing notices sent to the plaintiff let this case fall under the situation where a hearing may be omitted, stated in Article 21 Paragraph (4) Item 3 of the Administrative Process Act, and therefore the defendant's disposition undertaken without a hearing process as in the present case, shall be deemed to be justified.
2.In view of Article 24 Item 1 of the previous Public Sanitary Act(repealed by the Public Sanitary Control Law No. 5839 of February 8, 1999) and Article 22 Paragraph (1) Item 1, Article 22 Paragraph (4), Article 21 Paragraph (4), Articles 28, 31, 34 and 35 of the Administrative Process Act, in order to revoke the approval of an amusement center industry an administrative agency must hold a hearing, but in the event of the situations described in Article 22 Paragraph (4) and Article 21 Paragraph (4) of the Administrative Process Act, the hearing may be omitted. The presiding authority of the hearing designated by the administrative agency shall preside over the hearing; then create a record of the hearings including the attendance of parties, the summary of the statements and submitted evidence, the presiding authority's opinion, etc.; after the completion of the hearing, the record of the hearing, etc. must be submit to the administrative agency without delay, and; if the administrative agency decides that there is a sufficient reason for an administrative disposition after the agency reviews the records of the hearing, the agency shall make a disposition strongly reflecting the results of the hearing. In light of the purpose of a hearing system, which is taking into consideration the possibility of the need to correct illegal actions, and enforcing discretion and appropriateness to a disposition by allowing the businessman/businesswoman an opportunity to present excuses and favorable information for themselves, it is mandatory for the administrative agency to conduct a hearing when making an infringing administrative disposition, except for the cases where the hearing is allowed to be excluded. Therefore, any disposition made without this process shall be deemed as an unjustified disposition, and thereby it shall be subject to revocation. (See Supreme Court Decision 83Nu14 delivered on June 14, 1983; Supreme Court Decision 91Nu971 delivered on July 9, 1991; Supreme Court Decision 99Du5870 delivered on November 14, 2000.)
Even though Article 14 Paragraph (4) Item 3 of the Administrative Process Act stipulates "when reasonably deemed that there are grounds that the hearing of opinions is impractical or the hearing is clearly unnecessary considering the nature of the dispositions concerned" as reasons where excluding the hearing process is possible when performing an infringing administrative disposition, 'whether there are grounds that the hearing of opinions is impractical or the hearing is clearly unnecessary' prescribed herein, must be determined by the nature of the administrative disposition concerned, and not by whether the hearing notice had been returned nor by the method of notification of the hearing, etc. In addition, the fact that the party concerned with the administrative disposition had been absent on the notified day of the hearing, alone does not justify the administrative agency's infringing administrative disposition conducted without having opened the hearing required by the relevant Act or subordinate statutes. Therefore, an infringing administrative disposition without having foregone the process of a hearing on the grounds that the notice of the hearing had been returned or on the grounds that the party concerned with the administrative disposition had been absent on the day of the hearing cannot avoid being regarded as illegal.
Despite this, the court below held that the return of the two notices could be a valid reason that leads to the exceptional situations mentioned in Article 21 Paragraph (4) item 3 of the Administrative Process Act permitting the omission of the hearing procedure and the disposition in question was legal in that the plaintiff had been absent on the day of the hearing. However, there is a reversible error in matters of law as to legal theories with respect to the hearing process which affected the conclusion of the judgment of the court below.
The ground for appeal indicating this issue is justified.
3. Accordingly, the judgment of the court below shall be reversed without examining the remaining grounds for appeal, and the case shall be remanded to the court below for retrial and determination as per Disposition. This decision is delivered with the assent of all Justices who heard the appeal.
Justices Lee Kyu-hong (Presiding Justice)
Song Jin-hun (Justice in charge)
Yun Jae-sik
Son Ji-yol
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