공법상 지위승계 규정이 없는 경우, 제재처분 승계의 요건 - 대물성 개념의 상대화와 불확실성 논의를 중심으로 -

Abstract

The main issues of the cases are as follows: (1) whether since the suspension of business is an objective disposition and the effect of the suspension of business is objective, the disposition has been eliminated due to closure, and the effect of the disposition is not inherited to a new medical institution, (2) whether the suspension of business is an objective disposition, and if there is a succession of business transfer, etc. (comprehensive succession by the successor), the transferee will succeed to the suspension of business, (3) if the suspension is mixed, both the transferee and the founder of the existing medical institution can succeed to the suspension of business (even if there is no succession to the business transfer), the reason for suspension should be recognized. In terms of succession in the suspension of medical institutions (concept of obligation, judgment mark, Otto), administrative sanctions due to violations of the law are, in principle, difficult togive up personal continuity, so the suspension of work is recognized as succession. In terms of succession requirements, this case is an incomplete legal state, so it is difficult for sanctions to be succeeded without legal reservation. According to the opinion that denies succession, there is only the possibility of imposing obligations on incomplete legal conditions, and it is not inherited because it is only "a state in which the authority to intervene by the competent administration is granted." Even if succession is recognized, the police disposition is considered to be recognized as it confirms the party's violation of obligations, but the behavioral responsibility is determined when the behavior is performed, so succession is not recognized. Whether a medical institution's suspension of work is a police disposition or behavioral responsibility can be discussed again, but the target precedent is at least not considered a police disposition (because it is a suspension due to the administration's refusal to conduct an on-site investigation). If there is only a reason for sanctions on whether the succession of the reasons for sanctions and the succession of the effects should be separated, in principle, the succession cannot be discussed, and the effect after the disposition is made can be succeeded accordingly. The Supreme Court believes that not only the reason for sanctions but also the effect of sanctions is recognized if there is a prestigious regulation that recognizes the succession of objective business status, but this can be seen as expanding the basis for the succession of sanctions without considering legal reservation.