영업양도와 제재처분상의 지위승계

Abstract

What obligations and liabilities characteristic in administrative law are carried over to a transferee when business transfer is occurred? Assuming that legislator has considerable discretion in regulating this problems, these two conditions are required cumulatively under the doctrine of succession to administrative law duties; certain nature of the obligation (Nachfolgefhigkeit) - that is, the obligation shall be capable of transfer - and statutory provisions that regulate the succession in case of business transfer (Nachfolgetatbestand). Through the traditional form of approach, it does not seem possible that a transferee should inherit potential liability for the tranferor's breach of statutory duties which was committed prior to the transfer. Such administrative sanctions-connected liabilities of transferor cannot be transferred to transferee in that the disciplinary liabilities are those tailored to a transferor's identity. And even there being statutory grounds, imposing administrative sanctions on transferee on the ground of the breach 'committed' by the transferor can not be regarded as constitutional, in that the administrative sanctions on transferee is not in harmony with proportionality priniciple - particulary in the sense that the means chosen must have been suitable for achieving the goals (suitability) - of our Constitution.