2. The costs of lawsuit shall be borne by the Plaintiff.

A. On November 16, 1998, the Plaintiff’s father, acquired a license for manufacture of consigned from the Defendant on November 16, 1998, and a license for manufacture of medicinal liquor on March 31, 200, and died in the course of engaging in the consignment and pharmaceutical manufacturing business in the name of the name of the Cheongnam Gong Gong336 at the Cheongnam Gongnam Gong, and the Plaintiff was operating the same amount after receiving the inheritance from Maa on October 6, 200.

B. From January 201, the Plaintiff manufactured and sold approximately KRW 28,00 disease of 'Oplags' (hereinafter 'the instant alcoholic beverages') from January 201 to around the night. During the investigation conducted by the Daejeon Regional Food and Drug Administration on March 28, 2012, the Plaintiff was found to have used the flag, which is the added materials that the Plaintiff could not use for the flag as above, and the Commissioner of the Korea Food and Drug Administration notified the Defendant thereof on April 4, 2012.

C. Accordingly, on May 2, 2012, the Defendant rendered a disposition of suspending the manufacture of alcoholic beverages 15 days (from May 14, 2012 to May 28, 2012) against the Plaintiff on the ground that the Plaintiff manufactured alcoholic beverages in violation of the specification of alcoholic beverages under Article 5(4) of the Liquor Tax Act and the type of added materials under Article 2(1) of the Enforcement Decree of the Liquor Tax Act (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 1, 4, Eul evidence 1 to 4, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Liquor Tax Act was enacted to establish the basis for the imposition of liquor tax, and Article 5 (4) of the Liquor Tax Act provides for the standards of alcoholic beverages which are no relation with the imposition of liquor tax and the contents of the manufacturing method of alcoholic beverages. The above provision is an unconstitutional provision in violation of the principle of prohibition of arbitrary imposition under the Constitution.

Article 2(1) [Attachment 1] of the Enforcement Decree of the Liquor Tax Act (hereinafter referred to as the "Enforcement Decree provision of this case") provides that a flavoring shall not be added to a flavoring. The above Enforcement Decree provision of the Liquor Tax Act which limits that a flavoring shall not be added to most alcoholic beverages, such as Cheongju, beer, negligent owner, ski, and branchis, while allowing a flavoring to be added to most alcoholic beverages under the Liquor Tax Act, is contrary to the principle of equality, and is unconstitutional by infringing on the freedom of occupation and consumer self-determination

As above, Article 5 (4) of the Liquor Tax Act, which is an unconstitutional statute, and the disposition of this case based on the provision of the Enforcement Decree of this case shall be revoked in an unlawful manner.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination on whether Article 5(4) of the Liquor Tax Act is unconstitutional

Under the title of "production and sale of alcoholic beverages" in Chapter II, the Liquor Tax Act provides for the facility standards and other requirements for each type of alcoholic beverages to obtain a license from the head of the competent tax office for their manufacture and sale, while Chapter III provides for the imposition and collection of liquor tax at the same time according to the classification of alcoholic beverages under the title of "the imposition and collection of liquor tax". As such, the Liquor Tax Act also regulates not only the "tax on alcoholic beverages" but also the "production and sale of alcoholic beverages" and the "sale of alcoholic beverages". The substance is the "Manufacture and sale of alcoholic beverages". However, the issue of whether to regulate the matters concerning "production and sale of alcoholic beverages" and "tax on alcoholic beverages" together with one Act or two or more Acts are left to the broad legislative discretion of the legislator, so it cannot be said that there is no reason to say that the legislative system like our former Liquor Tax Act does not follow the legislative system.

한편 주세법 제22조는 주류의 종류에 따라 세율에 차등을 두고 있는데, '주류의 규격'은 주세법 제3조 제2호의 정의규정에 의하면 원료의 용량, 첨가재료의 종류, 알코올분의 함량, 여과방법 등 주류의 종류를 구분하는 기준을 가리키는 것이므로, '주류의 규격'은 주세법 제22조에 따른 주류의 세율을 판정하는 지표가 되는 '주류의 종류'를 구분짓는 기준이 된다. 그러므로 '주류의 규격'에 관하여 필요한 사항을 그 시행령인 대통령령으로 정하도록 위임하고 있는 주세법 제5조 제4항은 '주류의 세율'과도 갚은 연관을 지니고 있다고 아니할 수 없는바, 위 조항을 두고 '주류의 조세'와는 전혀 무관한 생뚱맞은 규정이라고 볼 수도 없다고 하겠다.

Therefore, this part of the plaintiff's assertion that Article 5 (4) of the Liquor Tax Act is unconstitutional in violation of the principle of prohibition of arbitrary acts under the Constitution is without merit.

D. Determination as to the unconstitutionality of the provision of the Enforcement Decree of this case

(1) Under Article 4 (1) of the Liquor Tax Act, the kinds of alcoholic beverages shall be classified into "alcoholic beverages, fermentation alcoholic beverages, distilled alcoholic beverages, distilled alcoholic beverages, and other alcoholic beverages." The kinds of alcoholic beverages in effect shall be classified into "Cheongju, medicinalju, Cheongju, Cheongju, Cheongju", and the kinds of alcoholic beverages in distilled alcoholic beverages shall be classified into "Cheongju (e.g., distilled alcoholic beverages, dilution), Wkikisk, general distilled alcoholic beverages, and curur." According to Article 4 (2) [Attachment] of the Liquor Tax Act, the kinds of alcoholic beverages shall be classified into the same kinds of alcoholic beverages as the relevant alcoholic beverages in addition to the original forms of the relevant alcoholic beverages. In addition, Article 4 (2) of the Enforcement Decree of the same Act of this case provides that the kinds of alcoholic beverages shall be classified into the same kinds of alcoholic beverages as the relevant alcoholic beverages even if they are added to the original forms of the relevant alcoholic beverages in addition to the original forms of the relevant alcoholic beverages.

On the other hand, any liquor using any raw material, manufacturing method, added materials, etc. is not prohibited from being manufactured, unless it is in violation of the Food Sanitation Act, and since Article 4(2) [Attachment Table] of the Liquor Tax Act provides open provisions concerning the contents of “other alcoholic beverages” under Article 4(2) [Attachment Table] 4(e) of the Liquor Tax Act, if the liquor manufactured as above is not included in the remaining kinds of alcoholic beverages under the Liquor Tax Act, it constitutes “other alcoholic beverages”.

Ultimately, the provisions of Article 4(1) and (2) of the Liquor Tax Act and the Enforcement Decree of the instant case are to determine how to set the kinds of alcoholic beverages under the Liquor Tax Act and which kind of alcoholic beverages under the Liquor Tax Act are included in any item of alcoholic beverages under the Liquor Tax Act, in order to regulate various kinds of alcoholic beverages by dividing them into different kinds of alcoholic beverages.

(2) As to the instant case, the Plaintiff’s health care room does not include the additional materials that may be incorporated into the original consignment in accordance with the provisions of Article 4(2) [Attachment Table] 2(a) of the Liquor Tax Act and Article 4(2) [Attachment Table] 2(a) of the same Act, and the Plaintiff’s manufacture of the instant alcoholic beverages by adding the instant alcoholic beverages to night tobacco. According to the provisions of Article 4(4)-4 of the same Act and Article 4(1)-1 of the Enforcement Decree of the instant case, the instant alcoholic beverages cannot be deemed to be a "retail liquor under the Liquor Tax Act." However, the instant alcoholic beverages fall under Article 4(2) [Attachment Table] 4(2) [Attachment Table] of the Liquor Tax Act (other than alcoholic beverages under subparagraph 2 as alcoholic beverages manufactured with the effect, and the Plaintiff’s assertion that this part of the Enforcement Decree of the instant case violates the Constitution in relation to the manufacture of the instant alcoholic beverages is no longer dealt with as a matter of whether they go against the Constitution without treating it as a liquor under the Liquor law.

According to the provisions of Articles 6(1) and 22(2) of the Liquor Tax Act, Article 3 subparag. 4 of the Education Tax Act, etc., a person who intends to manufacture alcoholic beverages shall obtain a license from the head of the competent tax office with a certain facility standard, etc. for each alcoholic beverage manufacturing place by type of alcoholic beverage. The tax rate for the remaining alcoholic beverages except for the consignors is 30% or 72%, but the tax rate for the consignors is 5%, and the consignees are exempted from the obligation to pay education tax, unlike other alcoholic beverage manufacturers. In the case of the consignors, the consignees are not treated as the consignees under the Liquor Tax Act, due to the failure to legally manufacture the alcoholic beverages in accordance with the provisions of the Enforcement Decree of the instant case. Accordingly, the Plaintiff, who has only the consignees and medicinal brewing liquor manufacturers, has to obtain separate licenses for other alcoholic beverages and shall pay the liquor tax rate of 30%, and suffers considerable disadvantages in education tax, etc.

① However, in principle, the issue of how to determine the detailed contents by type of alcoholic beverage or what kind of alcoholic beverage is to be treated as a kind of alcoholic beverage under the Liquor Tax Act is determined by the legislators in consideration of various factors such as the characteristics of the relevant alcoholic beverage, as a matter of principle, and it is necessary to maintain and preserve a wide range of legislative discretion or freedom to form it in its original form as far as possible, as possible, as traditional liquor inherent in Korea. Considering this, the Liquor Tax Act, etc. provides special benefits to the consigned manufacturer, such as setting the rates for consignment as above in the Liquor Tax Act, etc. (3) restricting the restriction on materials that can be added by type of alcoholic beverage under the Enforcement Decree provision, etc. of this case may be lost by type of alcoholic beverage in cases of abuse of added materials. In addition, it would be more likely to hinder the maintenance and preservation of the traditional principle of consignment when granting tax benefits in the same way as that of the unaccompanied alcoholic beverage, and it would be more likely that the provision of this case’s freedom and self-determination right to self-determination may not be added to the same type of alcoholic beverage.

Therefore, this part of the Plaintiff’s assertion that the enforcement decree of this case violates the Constitution is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case premised on the unconstitutionality of Article 5 (4) of the Liquor Tax Act and the Enforcement Decree of this case is without merit, and the plaintiff's claim is dismissed and it is so decided as per Disposition.