[식품접객업불허가처분취소][공2001.3.15.(126),556]
Whether permission to engage in entertainment business under the Food Sanitation Act may be denied on the grounds of public interest in cases where an application for permission to engage in entertainment business is filed within an area to which the Natural Parks Act applies (affirmative)
In full view of the purport of relevant provisions, such as Articles 1, 16, 17, 36, 37, 49, and 50 of the Natural Parks Act, and Articles 2 subparag. 2, 9, 25, and 30 of the Enforcement Decree of the same Act, where an application for permission for an entertainment business which is one of the food service businesses under the Food Sanitation Act is filed within an area to which the Natural Parks Act applies, it may be denied if it is necessary not to grant permission on the fulfillment of facilities requirements, etc. under the provisions related to the Food Sanitation Act, but to place a natural park for the purpose of designation, facility status in a park, special purpose district, number of visitors and use, passage of visitors, location of stores, surrounding circumstances, etc. under the provisions related to the Natural Parks Act, such an entertainment business may be denied if it is necessary for public interest, such as the development of public health and leisure and emotional life, maintenance
Articles 1, 16, 17, 36, 37, 49, and 50 of the Natural Parks Act; Article 2 Subparag. 2, 9, 25, and 30 of the Enforcement Decree of the Natural Parks Act; Articles 21 and 22 of the former Food Sanitation Act (amended by Act No. 5529 of Feb. 28, 1998); Article 27 of the Administrative Litigation Act
Plaintiff
Kim Jong-market
Gwangju High Court Decision 98Nu327 delivered on February 4, 1999
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
In full view of the purport of relevant provisions, such as Articles 1, 16, 17, 36, 37, 49, and 50 of the Natural Parks Act, and Articles 2 subparag. 2, 9, 25, and 30 of the Enforcement Decree of the same Act, where an application for permission to engage in entertainment business, which is one of the food service businesses under the Food Sanitation Act, is filed within an area to which the Natural Parks Act applies, the permission may be denied if it is necessary for public interest, such as the purpose of designation of a natural park, the current state of facilities in a park, the specific use district, the number of visitors and use of visitors, the location of a store, and surrounding circumstances, by taking into account the natural park-related provisions under the Natural Parks Act, such as the development of public health and leisure and emotional life, the maintenance of sound research order, etc.
According to the reasoning of the judgment below and the records, the court below determined that the disposition of this case rejected by the plaintiff on the ground of public interest, such as that when the plaintiff filed an application for permission to engage in entertainment business with respect to the store in the Masan Do Park, and that the defendant's new permission to engage in the business is limited in the guidelines for facilities in the collective facility district in the Do Park (hereinafter referred to as the "guidelines"), the court below was legitimate and there was no violation of law of deviation or abuse of discretionary power, in view of the purpose of designating Do parks for protecting natural ecosystem and natural scenic areas, protecting people's health and leisure and emotional life, etc. in accordance with the provisions related to the Natural Parks Act, and that commercial buildings where the store in this case is located are located in the place where the park visitors use the park, etc., by suppressing the amusement facilities.
The judgment of the court below is just and acceptable in accordance with the above legal principles, and there is no error in the misapprehension of legal principles as to the nature of business permission and the deviation or abuse of discretionary power, etc. In addition, the mere fact of the lawsuit is not in violation of the principle of equality, just because the lawsuit was filed in a close place to the store of this case. The argument in the grounds of appeal on this point is unacceptable.
In addition, the court below stated that the above guidelines are merely internal guidelines of a court and an administrative agency, which have no legal effect and binding effect on the people, and that the legality of the disposition of this case should be determined according to the provisions related to the Food Sanitation Act and the Natural Parks Act rather than the above guidelines. Thus, among the grounds of appeal, the part criticizeing the court below that recognized the legal effect of the above guidelines is merely an independent opinion and thus cannot be accepted.
Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Seo-sung (Presiding Justice)