(영문) 부산지방법원 2013.8.22.선고 2012구합5610 판결

On October 4, 2012, the defendant's disposition accepting business reports for the accommodation business (living activity) against the Intervenor joining the Defendant (hereinafter referred to as "the Intervenor") on October 4, 2012 is revoked.

Reasons

1. Details of the disposition;

A. The 30th ground B hotel above the 7th ground in Busan Metropolitan Transportation Daegu is mostly a hotel parking lot, the 1st to 3th ground is a neighborhood living facility, the 4th above ground is a hotel and a restaurant, and each hotel service has been provided from the 5th to 30th above ground, and the 416th room of the total guest room is a kind of resort hotel with convenience facilities such as a living room, laundry room, and a kitchen, and each co-owner has a co-owner (hereinafter referred to as the "the aggregate building of this case").

B. On September 22, 2009, the Plaintiff reported the whole guest rooms of the instant aggregate building. The Plaintiff entered into an agreement on the entrusted operation with the sectional owners of 380 guest rooms of the instant aggregate building, and entered into the agreement on August 4, 2010 with the above 380 guest rooms, and operated the lodging business with four guest rooms and three additional guest rooms on April 18, 201. Since July 1, 2012, the number of guest rooms entrusted by the Plaintiff was reduced to 223 guest rooms. The Intervenor submitted a report on the accommodation business to the Defendant on July 16, 201 by entering into an agreement on the entrusted operation with the sectional owners of 168 guest rooms of the instant aggregate building, and submitted the report on the accommodation business to the Defendant on July 16, 2012.

D. On July 3, 2012, the Defendant: (a) responded to the Ministry of Health and Welfare’s inquiry (the Ministry of Health and Welfare’s interpretation of right (the Ministry’s health and Welfare-242, 2008, 22 January 22, 201) that a number of reports on the business of accommodation in a collective building is not possible; (b) pursuant to the Ministry of Health and Welfare’s interpretation of right (the Ministry for Health, Welfare and Family Affairs’s interpretation of right to ask questions; hereinafter referred to as “the answer to inquiries”); and (c) returned the Intervenor’s report on the business of accommodation (hereinafter referred to as the “the first return”). The summary of the response

Although there is no separate provision for the facilities and equipment of a lodging business under the Public Health Control Act, there is a matter to be observed by a lodging business operator, such as a certificate of report on accommodation business and a list of guest rooms, and if a lodging business operator is subject to an administrative disposition due to a violation of the Public Health Control Act, it is difficult to abide by the business operator's compliance with the business report if he/she operates multiple accommodation businesses in the same aggregate building because it comes to an administrative authority and responsibility (administrative disposition).

E. On August 22, 2012, the Intervenor added one guest room to the Defendant, and reported the business of accommodation to the Defendant, but the Defendant, on the same day, rejected the business report to the same effect as the first return disposition (hereinafter referred to as the “second return disposition”). On the other hand, the Intervenor filed an administrative appeal with the Busan Metropolitan City Administrative Appeals Commission (hereinafter referred to as the “Administrative Appeals Commission”) and received the ruling of acceptance that the second return disposition was revoked on September 18, 2012. Accordingly, the Defendant accepted the report of accommodation business (hereinafter referred to as the “instant disposition”).

[Ground of recognition] Facts without dispute, Gap's 3 (including a provisional number; hereinafter the same shall apply) through 7, 8 through 11, Eul's entries in subparagraphs 1 through 4, and the purport of the whole pleadings

2. Determination on the defense prior to the merits

The defendant and the intervenor have no standing to sue as a person who has no legal interest and has no standing to sue, and the lawsuit of this case must be dismissed.

Even if a third party is not the direct counter-party to an administrative disposition, if the legal interests protected by the administrative disposition have been infringed, the party is entitled to obtain a decision of propriety by filing an administrative litigation seeking a confirmation of invalidity of the administrative disposition. The legal interests referred to in this context refer to the individual direct and specific interests protected by the relevant laws and regulations and relevant laws and regulations (see, e.g., Supreme Court en banc Decision 2006Du330, Mar. 16, 2006).

On September 22, 2009, the plaintiff completed a report on the business of the accommodation business and thereafter operated the accommodation business independently in the aggregate building of this case. However, due to the disposition of this case against the defendant's intervenor, a person who runs two accommodation businesses in one aggregate building of this case has co-existence, and if the purport of the disposition of this case is that a number of accommodation businesses are not reported in one aggregate building of this case, the disposition of this case by the defendant is protected by the law that allows the plaintiff to run the accommodation business independently in one aggregate building of this case, and therefore, the plaintiff is a person who has a legal interest in seeking the cancellation of the disposition of this case.

Therefore, the defense of the defendant and the intervenor before the merits is without merit.

3. Whether the disposition is lawful;

A. The plaintiff's assertion

1) The instant disposition is against the question and answer, and it is unlawful to make it impossible to impose administrative dispositions due to the uncertainty of the responsible subject in the event two lodging businesses exist in the instant aggregate building, causing confusion with the business entity, or violating the relevant laws and regulations, and thus making it impossible to achieve the legislative purpose of the Act, the Enforcement Rule, etc.

2) At the time of the Intervenor’s filing of a business report on October 4, 2012, the Plaintiff’s instant disposition was unlawful since the instant disposition was rendered by the Defendant, even though the Intervenor was unlawfully installed in common areas and was not accepted a business report, at the time of the Intervenor’s filing of the business report.

3) In order to receive the instant disposition, the Intervenor submitted a business report and an accompanying “business facility and equipment outline” to the Defendant. In this case, the Intervenor reported to the guest room to operate the lodging business including “the guest room that did not secure the right to use,” and the portion of the exclusive ownership and the joint ownership, which are the object of sectional ownership, are separately stated and reported, and thus, the instant disposition is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Determination on the first argument

A) Article 3(1) of the Act provides that "a person who intends to conduct a public health business shall have facilities and equipment prescribed by Ordinance of the Ministry of Health and Welfare and report to the head of the Gu, etc." (Article 3(3) provides that "the method and procedure for reporting shall be prescribed by Ordinance of the Ministry of Health and Welfare". Article 2 of the former Enforcement Rule of the Public Health Control Act (amended by Ordinance of the Ministry of Health and Welfare No. 173, Dec. 11, 2012; hereinafter referred to as the "Enforcement Rule") provides that a person who intends to conduct a public health business shall install a bath or shower room for cooking facilities and ventilation, and Article 3 of the Enforcement Rule provides that a person who intends to conduct a public health business shall report to the head of the Gu, etc. by submitting a report to the head of the Gu, etc. along with a summary of facilities and equipment, a certificate of completion of education, etc. shall file a report to the head of the Gu, etc., and if necessary, file a report to the head of the Gu, etc.

B) According to the above provisions of this Act and evidence, each of the following circumstances, namely, ① the so-called administrative rules or internal guidelines issued by a superior administrative agency regarding the interpretation and application of Acts and subordinate statutes, are generally effective only within the administrative organization, and such administrative dispositions are not immediately unlawful merely because each of the owners of the first floor's common areas and the part of the first floor's common areas and the second floor's common areas and the first floor's common areas and the second floor's common areas and the second floor's common areas and the second floor's common areas and the second floor's common areas and the second floor's common areas and the second floor's common areas and the second floor's common areas and the second floor's common areas and the second floor's common areas and the second floor's common areas and the second floor's common areas and the second floor's common areas and the second floor's common areas and the second floor's common areas and the second building's common areas and the second building's common areas and the second building's common areas and the second building's common areas and the second building's common areas are not clearly established.

2) Judgment on the second argument

There is no evidence to prove that the intervenor installed a entertainment entertainment with the 6th floor section for common use, and in full view of the purport of the entire arguments in each of the above evidence, it is recognized that the intervenor used part of the 6th floor space as part of the Round, but each of the sectional owners of the 169 aggregate buildings of this case is not entitled to exclusive use of the tragium, but has the right to joint use. Therefore, it is difficult to view that the participant who entered into an entrusted operation contract with the sectional owners of the 169 unit as well as the use of the trag part of the trag as part of the tragium through which general delivery may pass

The plaintiff's assertion on this part is without merit.

3) Judgment on the third argument

In full view of the aforementioned evidence, it is reasonable to view that the report on accommodation business submitted by the intervenor to undergo the disposition in this case was sufficient to examine whether the 169 guest rooms among the aggregate buildings in this case were operated, and that the 12 co-owners of the 12 rooms concluded the entrusted operation contract with the intervenor and concluded the entrusted operation contract with the plaintiff, but it is recognized that the administrative agency accepting the report is sufficient to examine whether the report was properly implemented through documentary examination, and where it is necessary to verify the facilities to be equipped with public health or facilities, it is difficult to see that the legal obligation exists to verify whether the entrusted operation contract was actually finally established. In fact, it is difficult to verify that it is actually impossible to verify that the part of the accommodation's business site is combined with the section for exclusive use and the section for common use, and the section for common use in this case refers to the area of the share of the section for exclusive use, not with the whole section for common use available by the accommodation, and in light of the above evidence No. 5, it is difficult to view that the plaintiff's report on the business site and the facility.

Therefore, the defendant's disposition of this case is legitimate.

4. Conclusion

Thus, the plaintiff's claim of this case is dismissed as it is without merit.