2015Nu6397 Revocation of the disposition of imposition of penalty surcharge

A

Head of Gwangjin-gu Seoul Metropolitan Government

Seoul Administrative Court Decision 2015Gudan8964 decided October 6, 2015

June 24, 2016

July 15, 2016

1.The judgment of the first instance shall be modified as follows:

A. On June 22, 2015, the Defendant’s imposition of a penalty surcharge exceeding KRW 13,160,000, which was imposed by the Plaintiff against the Plaintiff, shall be revoked.

B. The plaintiff's remaining claims are dismissed.

2. Of the total litigation costs, 80% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

The judgment of the first instance shall be revoked. The disposition of imposition of a penalty surcharge of KRW 16,80,000 against the Plaintiff on June 22, 2015 shall be revoked by the Defendant.

1. Details of the disposition;

This Court's reasoning is that the corresponding part of the judgment of the court of first instance is identical to that of the corresponding part of the judgment of the court of first instance (one-half to two-third of the judgment of the court of first instance). Thus, this Court's reasoning is acceptable in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure

2. Whether the disposition is lawful;

A. Summary of the plaintiff's assertion

1) Non-existence of grounds for disposition

In other words, around 02:00 on November 16, 2014, the Plaintiff did not verify the identification card and did not sell alcoholic beverages to juveniles, such as liquor and beer. In other words, around 02:00, both male and female customers entered the instant restaurant and placed an order for beer, beer, and beer, and the Plaintiff’s employee D was found to have inspected the identification card. After that, the Plaintiff’s employee D entered the two under the influence of alcohol and joined the same male and female name, but did not undergo an examination for identification card, but did not follow an additional statement, but did not follow an additional statement about five minutes, and the Plaintiff was dispatched to the instant restaurant and her control. Accordingly, in such a case, the Plaintiff cannot be held liable for selling alcoholic beverages to juveniles. Even if a domestic juvenile dice dice ding, the Plaintiff merely did not know that he was a juvenile and did not intentionally provide alcoholic beverages.

2) A deviation from or abuse of discretionary power

In light of the fact that two juveniles were at the vicinity of adults, the Plaintiff’s age was close to adults, and there are circumstances to be considered in light of the circumstances, other than this case, the Plaintiff did not violate other Acts and subordinate statutes, and the economic difficulty, etc., the instant disposition is unlawful or abused by the Plaintiff’s excessively harsh discretion, and should be mitigated by excessive amount.

B. Determination

1) As to the non-existence of grounds for disposition

A) First of all, as to the assertion that juveniles did not drink in the restaurant of this case, there is a witness D’s testimony and a notarial statement (Evidence A No. 14) prepared by E in this court as evidence as to the assertion that juveniles did not drink in the restaurant of this case. However, the above evidence cannot be trusted for the following reasons, and considering the overall purport of the arguments in each of the statements Nos. 8, 9, 11, and 12, the Plaintiff sold alcoholic beverages to juveniles. The Plaintiff’s assertion on this part is without merit.

① On November 16, 2014, immediately after the police control, the Plaintiff’s employee D written statement (Evidence B No. 11) stating that “No later than November 16, 2014, it was discovered that 96 students F and G were exposed to crackdown because he/she did not confirm his/her identification card by entering three male customers and drinking and does not confirm his/her identification card.” The Plaintiff’s employee D puts his/her signature and seal on it. Unless there is any objective reason to deem that the written statement was drafted by coercion, it is difficult to readily deny the value of evidence. Furthermore, even if the police stated several different developments at the time of the investigation as a suspect, D stated that “I, without confirming the identification card of the young, divided the facts that he/she sold and drinking alcohol,” and finally recognized his/her responsibility according to the relevant disposition, D was suspended from prosecution.

② The Plaintiff’s alcoholic beverages sold to the above customers and the alcoholic beverages possessed by the restaurant of this case are alcoholic beverages and alcoholic beverages equivalent to KRW 56,00 in total, such as 50,00,000, such as soup, soup, soup, and drinking water. The amount of such alcoholic beverages appears to have been considerably excessive in light of the empirical rule at the time of drinking by ordering approximately one hour to a male and female woman. D also provided three times in the first instance of this court’s testimony in the course of this court’s testimony, it stated to the effect that the order of the remaining 1-2 soldiers of this case was not reached at the time of their existence of the above male and female (However, D reversed the above statement during the during the cross-examination, but she stated to the effect that there was no accurate memory as to whether the above male and female orders of Byung at the time of their testimony.)

③ According to the 112 Report Processing Statement (No. 12 evidence), the time when the first report on the Plaintiff’s business establishment was received on November 16, 2014, and the time when the police first arrived at the Plaintiff’s business establishment is 03:35 on the same day. Even according to the above evidence, the time when the two juveniles first arrived at the Plaintiff’s business establishment is 03:35 on the same day before and after the new wall was 3:00 on the same day (it is difficult to view that the police was dispatched to about 5:5 minutes after the two juveniles were joined at around 03:30, as alleged by the Plaintiff). In light of the above, it is highly probable that four juveniles first ordered the rest of the 1-2 soldier’s main office after the four main offices were delivered to the police, and that they were provided to the rest of 1-2 soldier’s main office after the order of the Plaintiff’s other employees, in light of the circumstances where one male, who was ordered to call the main office.

④ Two juveniles also enter the instant business establishment on November 16, 2014 at least three occasions from each written statement (No. 9-1, 2) to recognize the fact that they drink and drink.

B) Next, as to the assertion that the Plaintiff had no intention, the instant disposition cannot be deemed unlawful in light of the legal principles, even if the Plaintiff did not intend to provide alcoholic beverages to juveniles as the Plaintiff’s assertion, as long as the Plaintiff sells alcoholic beverages in the restaurant in this case as a general restaurant business owner, and the Plaintiff failed to perform this duty by thoroughly predicting that the Defendant had access to the restaurant in this case and thoroughly checking the age of juveniles, thereby preventing the act of drinking alcohol, and thus, it cannot be deemed that the Plaintiff neglected its duty of care, barring any special circumstances. Therefore, the Plaintiff’s failure to perform this part of his duty is not reasonable.

2) As to the assertion such as deviation from and abuse of discretionary power

A) Whether a punitive administrative disposition deviates from or abused the scope of discretion under the social norms shall be determined by comparing and balancing the degree of infringement on the public interest and the disadvantages suffered by an individual by objectively examining the content of the act of violation as the grounds for the disposition, the public interest to be achieved by the relevant act of disposal, and all the relevant circumstances. In such a case, although the criteria for the punitive administrative disposition are not externally binding on the people or the court, the above criteria do not conform with the Constitution or laws, or are in itself subject to sanctions in accordance with the above criteria for disposition, and unless there are reasonable grounds to believe that such disposition is considerably unreasonable in light of the content and purport of the relevant statutes, it shall not be determined that the disposition goes beyond the scope of discretion or abused the discretionary power (see, e.g., Supreme Court Decision 2007Du6946, Sept. 20, 207). However, even so, it is a principle that administrative disposition is conducted by the statutes in force at the time of the disposition (see, e.g., Supreme Court Decision 198Du13828, Jan. 138, 198).

B) According to Article 75 of the Food Sanitation Act, Article 75 of the Food Sanitation Act, and Article 89 [Attachment 23] of the Enforcement Rule of the same Act, the grounds for violation of the provision of juvenile alcoholic beverages are subject to the disposition of suspension of business for the first time of the violation of the first time. The defendant reduced the plaintiff's employees to 1/2 by taking into account the fact that the suspension of indictment was taken in the relevant criminal case, and thereafter, the defendant was subject to the disposition of this case imposing a penalty surcharge in lieu thereof upon the plaintiff's request, and the case of the provision of juvenile alcoholic beverages is deemed to have been subject to the disposition of this case, and the degree of strict enforcement of the law is required in order to prevent the frequent appearance of similar cases and to maintain equity with other business places, even if all of the circumstances alleged by the plaintiff are considered, it cannot be said that the public interest to achieve the disposition of this case is less than the disadvantage that the plaintiff would suffer, and therefore, it is difficult to deem that

C) However, on June 22, 2015, the Defendant appears to have imposed a penalty surcharge of 16.8 million won (6 million won x 28 days) on the Plaintiff on June 22, 2015, on the basis of the Plaintiff’s annual sales of 369,000,000 won (see Evidence A7) under Article 53 [Attachment Table 1] subparagraph 2 of the Enforcement Decree of the former Enforcement Decree of the Food Sanitation Act (amended by Presidential Decree No. 26180, Mar. 30, 2015) in lieu of the disposition of business suspension for 28 days excluding 2 days already executed, among the dispositions of business suspension for one-month business suspension, on the ground that the Plaintiff falls under class 9 (one day: 600,000 won x 600 days x 28 days). However, the Enforcement Decree before the amendment (amended by Presidential Decree No. 26322, Jun. 22, 2015) cannot be applied.

In other words, Article 53 [Attachment 1] of the Enforcement Decree of the Food Sanitation Act was amended by Presidential Decree No. 26180 on March 30, 2015, which is to be imposed in lieu of business suspension, etc., and the reason for the revision is to increase the penalty surcharge in the case of a large business operator, but to lower the penalty surcharge in the case of a small business operator. Therefore, the penalty surcharge should be calculated in accordance with the revised Enforcement Decree. Accordingly, if appropriate amount of penalty surcharge is calculated against the plaintiff, pursuant to Article 53 [Attachment 1] 2 of the current Enforcement Decree of the Food Sanitation Act, the Plaintiff’s business falling under “business other than the food and food additives manufacturing and processing business” falls under class 9 (one day: 470,000 won) when the amount of penalty surcharge is calculated based on annual sales 369,000,000 won (470,000 won).

D) Therefore, the disposition of imposition corresponding to the portion exceeding the above amount of the penalty surcharge (1,3160,000 won) among the instant disposition should be revoked as unlawful. The Plaintiff’s assertion on this part is with merit within the above limit.

3. Conclusion

Therefore, the judgment of the court of first instance, which dismissed the plaintiff's claim, should partially accept the plaintiff's claim, is unfair, and it is so decided as per Disposition by accepting part of the plaintiff's appeal.

Justices Kim Heung-hoon

Judges Kim Sung-soo

Judge Lee Jae-soo