지위승계 신고 수리를 중심으로 본 행정처분 무효･취소 구별기준으로서 중대명백설의 한계

Abstract

The precedents maintain ‘Importance and Obviousness Theory’ as a criterion for distinguishing invalidation disposition and cancellation disposition. Even in academia, the ‘Importance and Obviousness Theory’ is introduced as a common view. When looking into the current discussions, however, many scholars for various reasons are criticizing the ‘Importance and Obviousness Theory’, so it would be more accurate to now view the theory as a minority theory. Until now, criticism on the ‘Importance and Obviousness Theory’ was mainly focused on the discussion of taxation disposition, and in fact, cases in which the Supreme Court precedent showed the possibility of deviating away from the ‘Importance and Obviousness Theory’ was also limited to cases of taxation disposition. There seems to be cases, however, that are not related to taxation disposition but bears potential factors that should be considered when deciding whether or not the ‘Importance and Obviousness Theory’ should be maintained as the criterion. Cases of business transfer contract may be included in these cases, where an existing business operator and a new business operator concluded a business transfer contract and reported succession to status, but then a suit seeking confirmation of nullity against the disposition of acceptance of the report on succession was filed. The precedent recognizes that if the business transfer contract is invalid then the acceptance of the succession report is also invalid. This seems difficult to explain by the existing ‘Importance and Obviousness Theory’. Although there exists a legal principle that “if a report is invalid, the act of acceptance is also invalid,” this principle does not explain all the issues of double effect of succession report and the structure in which the transfer contract is invalidated for reasons not attributable to the reporting person. Suit seeking confirmation of nullity against acceptance of succession report are types of disputes that have not been heavily dealt with in traditional administrative law. Precedents recognizing invalidation of acceptance of the succession report is not explainable through the ‘Importance and Obviousness Theory’. The scope of administrative law continues to expand, with the administrative agency's actions, which were previously not considered as dispositions, being recognized as dispositions, and issues that were previously not considered areas of administrative law being dealt with in administrative litigation. Considering this trend, it is expected that the limitations of the ‘Importance and Obviousness Theory’ will be revealed in more areas in the future, including the invalidity of status succession reports. Therefore, in order to flexibly resolve various disputes over defects in administrative dispositions, including the invalidity of status succession reports, it is necessary to open the way to recognize exceptions as some Supreme Court rulings have shown the possibility. Furthermore, in order to find out which cases are reasonable to be recognized as such exceptions, theory and practice should be refined together.