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(영문) 서울고등법원 2020.01.31 2019누47010

영업정지처분취소

Text

1. Revocation of the first instance judgment.

2. The Defendant’s disposition of business suspension against the Plaintiff on October 16, 2018 shall be revoked.

3...

Reasons

1. Details of the disposition;

A. The Plaintiff is operating a general restaurant in the name of “D” in the Seo-gu Incheon Metropolitan Government B and C.

B. At around 22:00 on August 25, 2018, the Plaintiff’s husband E sold a liquor of one disease to juvenile F (the age of 18) without verifying the identification card in the above restaurant (hereinafter “instant violation”).

C. The Defendant notified “two-month advance notice of the suspension of business,” and submitted a written opinion including the result of the suspension of indictment from the Plaintiff. On October 16, 2018, the Defendant submitted to the Plaintiff on October 16, 2018, Article 44(2)4 and Article 75 of the former Food Sanitation Act (wholly amended by Act No. 15943, Dec. 11, 2018; hereinafter the same), Article 89 [Attachment 23] of the Enforcement Rule of the Food Sanitation Act

I. In applying subparagraph 15 (f) of the General Standard, a disposition of “business suspension for one month” was taken (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, Eul evidence Nos. 1 to 5, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The Plaintiff’s assertion 1) The Plaintiff’s assertion that the absence of the grounds for disposition or the absence of justifiable grounds, or the Plaintiff’s employees G and H had visited the above restaurant two times on May 2018, verified that the number of each resident registration certificate exceeds 19 years of age. The F is a use of a forged or altered identification card. Since F was unaware of the fact at the time of the instant violation, E cannot be held legally responsible for the Plaintiff since F was unaware of the fact at the time of the instant violation. (2) In a case where a juvenile who was erroneous in the application of the disposition-based statute, or a juvenile who abused discretionary power, provided alcoholic beverages without knowledge of the fact that he was a juvenile, the disposition may be mitigated within 9/10 of the Enforcement Rule of the Food Sanitation Act [Attachment 23] Article 89 [Attachment 23] of the Enforcement Rule of the Food Sanitation Act, which is a basis

I. The instant disposition that did not apply under subparagraph 15 (j) of the General Standards is unlawful.

(b)as shown in the attached text of the relevant statute;