beta
(영문) 대법원 1979. 6. 26. 선고 79누43 판결

[영업허가취소처분취소][집27(2)행,64;공197912048]

Main Issues

(a) A copy of the revocation of non-sanitary restaurant business in school environmental sanitation and cleanup zone under Article 6 of the School Health Act;

(b) Where any error exists in an administrative disposition and a statement of revocation is made;

(c) Grounds for revocation of permission for change of place of business and relationship of revocation;

Summary of Judgment

(a) Even if a general entertainment restaurant in the school environmental sanitation and cleanup zone has an adverse effect on the health and sanitation of a school, the business license may not be revoked only by an order to remove the facility pursuant to Article 6 of the School Health Act;

(b) In cases where an administrative act was conducted by mistake and it is not deemed that there was a defect in the procedure of the administrative act, the administrative act may not be revoked solely on the grounds therefor.

C. The permission for change of place of business is a permission for change of place of business, and it is not a new permission for business, so the permission for change of place of business itself shall not be revoked.

[Reference Provisions]

Article 6 of the School Health Act

Plaintiff-Appellee

[Defendant-Appellee] Plaintiff 1

Defendant-Appellant

[Defendant-Appellee] Plaintiff 1

original decision

Gwangju High Court Decision 78Gu64 delivered on January 26, 1979

Text

The appeal is dismissed.

The costs of appeal shall be borne by the defendant.

Reasons

The grounds of appeal No. 1 by the defendant's attorney are examined.

However, according to the provisions of Article 6 of the School Health Act, the school environmental sanitation cleanup zone shall take measures necessary to prevent noise, vibration, malodor, etc. which may cause interference with students' learning and non-sanitary facilities or acts that affect school health and sanitation, and if necessary, it shall be ordered to remove the facilities, but it shall not be a ground for revoking the restaurant business license itself. Therefore, even if the plaintiff's general amusement restaurant's general amusement restaurant's facilities adversely affect school health and sanitation, it can be ordered to remove the facilities, and it shall not be deemed that the court below erred in the misapprehension of legal principles as to the School Health Act.

The second ground of appeal is examined.

In the case of changing the place of a general entertainment restaurant to the plaintiff, it cannot be deemed that the permission was made by mistake in that it is an effective cancellation approval letter, and that the permission was granted by mistake, even though the general entertainment restaurant was attached. Therefore, it cannot be deemed that the court below's decision that the permission was granted by mistake and that the permission was not revoked by mistake. Thus, there is no error in the misapprehension of the legal principle.

The grounds of appeal No. 3 are examined.

There is no evidence suggesting that the plaintiff's act of deceiving an administrative agency with the knowledge of the fact that the plaintiff's letter of approval for cancellation was forged, and thereby deceiving the administrative agency to obtain permission for change of place of business. The court below did not err in the misapprehension of legal principles as necessary for the public interest, because the court below acknowledged that the plaintiff's act of this case is not a facility which adversely affects school health and sanitation, and that the plaintiff's act of this case was deliberated upon by the School Environment Cleanup Committee and notified the cancellation approval to the head of Gwangju City Office of Education, thereby recognizing that the cancellation approval was notified.

The grounds of appeal No. 4 are examined.

However, it is reasonable that permission to change the place of business should not be viewed as permission to change only the place from among the contents of permission to do so, and even if the place of a general entertainment restaurant operated by the plaintiff is changed into the school environmental sanitation and cleanup zone, so in such a case, permission to change only the above place can be cancelled, and the business permission itself cannot be cancelled so that the plaintiff cannot do so even at the previous place, and there is a error of misunderstanding the business permission and permission to change the place.

Therefore, the appeal is dismissed. The costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Sap-ho (Presiding Justice) Man-ho (Presiding Justice)