208Nu1673 Application for prohibited acts and cancellation of facilities in school environmental sanitation and cleanup zone

Revocation of Prohibition

○ Kim

Attorney Kim Young-young, Counsel for the plaintiff-appellant

The head of the Office of Education of Gyeongbuk-do.

Litigation Performers;

Law Firm Gyeong-Gyeong et al., Counsel for defendant-appellant

[Defendant-Appellee]

Daegu District Court Decision 2008Gudan1752 Decided September 10, 2008

April 10, 2009

May 22, 2009

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The defendant's disposition of prohibition against the plaintiff on January 31, 2008 against his application for prohibited acts and cancellation of facilities in school environmental sanitation and cleanup zone shall be revoked.

2. Purport of appeal

The same shall apply to the order.

1. Details of the disposition;

A. On January 16, 2008, the Plaintiff, among the school environmental sanitation and cleanup zones under the School Health Act, operated a singing practice room (hereinafter referred to as the "singing practice room in this case") at approximately 200 meters away from a part of the 5th floor of the 5th floor of the 2nd floor of the 2nd floor of the 2nd floor of the 5th floor of the 2nd floor of the 5nd floor of the 5nd floor of the 5nd floor of the 5nd floor of the 5nd floor of the 5nd floor of the 5nd floor of the 5nd floor of

B. On January 31, 2008, after deliberation by the School Environmental Sanitation and Cleanup Committee of the Busan District Office, the Defendant rendered a disposition to reject the Plaintiff’s application for the prohibited acts in the school environmental sanitation and cleanup zone and to refuse to cancel the prohibited facilities (hereinafter “instant disposition”) with the purport that the instant singing practice room adversely affects students’ learning and school health and sanitation.

[Ground of recognition] Unsatisfy, Gap evidence 1, Eul evidence 1

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff asserts that the instant disposition is unlawful by deviating from and taking advantage of discretionary authority, since the instant singing practice room is not located in the main school of the students of the Gangseo-gu Elementary School (hereinafter referred to as the “Seomun-gu Elementary School”), and only a commercial building is located in the surrounding areas, and it does not have any convenience facilities such as language stores, Schlages, and private teaching institutes used by the students. The Plaintiff’s internal facilities or actions of the instant singing practice room are unlikely to affect students’ study and health and sanitation. Moreover, the instant singing practice room is running in a place close to the instant singing practice room from the Seo-gu Elementary School, and the instant singing practice room is already running in a place close to the instant singing practice room, and the instant site of the instant singing practice room is subject to a big restriction on commercial use despite the fact that it was sold at a higher price than the neighboring site as a commercial site.

(b) Related statutes;

It is as shown in the attached Form.

(c) Facts of recognition;

(1) The instant singing practice room is located at a place less than 116.8 meters away from the entrance of the Western Elementary School and 116 meters away from the boundary line, and its use area constitutes a general commercial area.

The north and the south side of the center of the Western Elementary School are general residential areas, and thewest side is designated as a commercial area, and the singing practice room of this case belongs to the nearest part of the Western Elementary School among the buildings located in a general commercial area.

(2) On February 2001, the instant building was newly built by Park △△△△ (the first and second floors are general restaurants, and the third and fourth floors are multi-household detached houses), and the first floor is currently used as a restaurant, and on January 10, 2008, the second floor of the instant building was leased from the said Park △△△△△△△△△△△△△ for the purpose of operating a singing practice room. The instant building was leased from the said Park △△△△△△△△△△△△△ for the purpose of operating the singing practice room business.

On the other hand, on July 15, 2005, the owner and the owner of the instant building filed an application for a deliberation on the cancellation of a facility to run a singing practice room in the second floor of the instant building. However, there was an administrative appeal against the said disposition on August 2, 2005 (the said disposition was dismissed but the said disposition was dismissed) and the application for the cancellation of a facility again was rejected in around 2008, the Daegu District Court 2008Gudan1325 against the said disposition, and then withdrawn the lawsuit on July 23, 2008.

(3) The instant building is located on the top of the Western Elementary School, and between them, the housing of three-story size is designated as a general main area. Most of the houses are used as commercial facilities such as restaurants, carpets, etc. The first floor is used as residential facilities, and the second floor is used as commercial facilities such as restaurants, carpets, etc. In addition, apartment buildings, etc. located on the north-dong along the wall of the Western Elementary School, which is located in the north-west-dong, with the center of the wall of the Western Elementary School.

(4) The surrounding areas of the instant building include Cheongx Kyx singing practice room, XX Kying practice room, singing practice room, and singing practice room, which are currently in operation, and adult-use facilities, such as telecom and entertainment tavern, are collectively included in the general commercial area outside the school environmental sanitation and cleanup zone.

(5) Among the singing practice rooms located around the instant building, xx singing practice room was subject to a disposition of a penalty surcharge of KRW 500,000 on April 18, 2005, and a disposition of a business suspension for up to 40 days on September 11, 2007, on the grounds that the Plaintiff sold and arranged for a loan of alcoholic beverages. Cheongxx singing practice room was subject to a disposition of a business suspension for up to 70 days on the grounds that the Plaintiff employed a entertainment loan on December 23, 2005, and sold alcoholic beverages on August 8, 2006, and was subject to a disposition of a business suspension for up to 30 days on the grounds that the Plaintiff sold alcoholic beverages on August 23, 2006.

(6) Meanwhile, students’ use of the instant singing practice room is not visible in the vicinity of the instant singing practice room, such as a private teaching institute, phrase store, and book store, and it does not appear in the Seodaemun Elementary School that shows the inside facilities of the instant singing practice room or sound thereof.

(7) At the time of deliberation upon the instant application, the head of Seoi Elementary School submitted the Dissenting Opinion stating that “the instant building is within 200 meters, which is the boundary line of the Cleanup Zone for school substitution, and is used as a school commuting for students with a total of 1,334 students, but is not a school principal school, and has an impact on the sentiments and learning environment of the principal school children, and that running a singing practice room in the school environment purification zone may have an adverse impact on the sound and good learning environment.”

(8) From September 200 to January 31, 2008, an application for the prohibition of prohibited acts and cancellation of facilities in the school environmental sanitation and cleanup zone for running a singing practice room business was filed with a total of 19 cases. However, during the above period, there were 10 cases for the prohibition of entertainment and PC rooms, 7 cases for the prohibition of entertainment and PC rooms, and 6 cases for the prohibition of billiard.

[Ground of recognition] Facts without dispute, Gap evidence 2 through 8, Eul evidence 2 through 18-2 (including each number), its images, and the purport of the whole pleadings

D. Determination

(1) Under the proviso of Article 6 (1) of the School Health Act (amended by Act No. 8678 of Dec. 14, 2007; hereinafter the same), with respect to an application for the cancellation of prohibited or prohibited facilities in a school environmental sanitation zone by the superintendent of an office of education or the superintendent of an office of education, the measures to cancel or continuously prohibit (refluence) such prohibited or prohibited facilities are discretionary acts of the superintendent of an office of education or the superintendent of an office of education with respect to the act or facilities harmful to learning and school health. In order to make such acts or facilities illegal by abusing or abusing the scope of discretion, the act or scale of the facilities is limited to those of the person entrusted by the superintendent of an office of education or the superintendent of an office of education. Determination shall be made with due care by comparing the circumstances such as the act or facilities and the type and location of the school, the number of students and the environment surrounding the school, the impact of such acts and facilities on learning, school health, sanitation, etc. with other acts or facilities surrounding the school environment.

In addition, the running of a singing practice room business refers to a business that collects admission fees or facility usage fees by installing facilities, such as video or non-video singing devices, so that it can sing in line with the musical instruments without the musical instruments. The running of a singing practice room in itself is not an act that impairs good morals or undermines the sound fostering of juveniles. However, the running practice room is a characteristic that many people sing in the same period of time at a narrow public domain sing in line with the anti-sing of the anti-sing system. Therefore, it is general that sing in a closed room partitioned by the partitions for noise prevention is selected, and it is the reality that a large number of players among customers or non-sing members of the video-sing system are selected, and it is difficult to deny the nature of the singing practice room as well as the risk of undermining the good customs of juveniles in the singing practice room or undermining the sound fostering of juveniles, and it is difficult to see the Constitutional Court Decision 96Hun-Ga29 decided Feb. 19, 1996.

(2) As to the instant case, the Plaintiff’s disposition of this case’s public health and hygiene room business is not likely to have been carried out by the Plaintiff, namely, ① the main school of the students around the instant building, but it is currently used by approximately 20% of the students to attend the instant building, taking into account the following circumstances: (i) the Plaintiff’s recent application for the removal of a practice room from the Plaintiff’s nearby the instant building for the removal of the Plaintiff’s entrance and exit of the Plaintiff’s practice room for the removal of the Plaintiff’s entrance and exit of the instant building; and (ii) the Plaintiff’s application for the removal of practice room business from the instant building for the removal of the Plaintiff’s entrance and exit of the Plaintiff’s entrance and exit of the Plaintiff’s practice room business to the extent that the Plaintiff’s application for the removal of practice room business cannot be deemed to have been carried out for the removal of the Plaintiff’s entrance and exit of the Plaintiff’s practice room business from the instant building; and (iii) the head of the instant school and the educational authority’s removal of the instant building would not be 9.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is unfair with its conclusion, and it is revoked, and the plaintiff's claim is dismissed, and it is so decided as per Disposition.

Maximum-type (Presiding Judge)

Freeboards

Kim Jong-ge

Related Acts and subordinate statutes

School Health Act (amended by Act No. 8678 of Dec. 14, 2007)

Article 1 (Purpose)

The purpose of this Act is to protect and promote the health of students and teaching staff by prescribing the matters necessary for the health care, environmental sanitation and purification of schools.

Article 5 (Establishment of School Environmental Sanitation and Cleanup Zone)

(1) In order to protect health, sanitation, and learning environments in schools, the Superintendent of an Office of Education shall establish and publicly announce a school environmental sanitation and cleanup zone, as prescribed by Presidential Decree. In such cases, the school environmental sanitation and cleanup zone shall not exceed 200 meters from the boundary line of a school warning line or of a planned school site.

Article 6 (Prohibited Acts, etc. in Cleanup Zone)

(1) No one shall place any act and facilities falling under any of the following subparagraphs in a school environment sanitation and cleanup zone: Provided, That acts and facilities prescribed by the Superintendent of an Office of Education or those delegated by the Superintendent of an Office of Education from among those referred to in subparagraphs 2, 2-2, 4, 8, 10 through 13-4 and 15 shall be excluded herefrom, within the zone prescribed by the Presidential Decree, and those acts and facilities which are not adversely affected academic activities and school health and sanitation after deliberation by the School Environmental Sanitation and Cleanup Committee:

15. Other acts and facilities similar to those referred to in subparagraphs 1, 2, 2-2, 2-3, 3 through 14, and other acts and facilities prescribed by Presidential Decree, and acts and facilities detrimental to the bad morals.

Enforcement Decree of the School Health Act (amended by Presidential Decree No. 20773 of April 28, 2008)

Article 3 (School Environmental Sanitation and Cleanup Zone)

(1) When the Superintendent of an Office of Education establishes a school environmental sanitation and cleanup zone (hereinafter referred to as the " Cleanup Zone") pursuant to Article 5 (1) of the Act, it shall be established by dividing it into the absolute Cleanup Zone and the relative Cleanup Zone, and the Section Cleanup Zone shall be an area from a school entrance door to a 50-meter straight line, and the relative Cleanup Zone shall be an area excluding the absolute Cleanup Zone among areas within 200 meters in a straight line along the boundary of a school

(2) When the superintendent of the Office of Education establishes a Cleanup Zone pursuant to paragraph (1), he/she shall notify the head of the Special Metropolitan City, the superintendent of the Gwangju Metropolitan City, or the Do Governor of the matters concerning the establishment date and establishment

Article 4 (Zone where Restriction on Activities is alleviated)

"Zoning prescribed by Presidential Decree" in the proviso to Article 8 (1) of the Act means the counter Cleanup Zone under Article 3 (1) (where a movie theater facilities under Article 6 (1) 2-2 of the Act and a billiard room facilities under Article 6 (1) 12 of the Act are installed, referring to the whole Cleanup Zone including the absolute Cleanup Zone.

Article 4-2 (Other Prohibited Facilities in Cleanup Zone)

Facilities prescribed by Presidential Decree pursuant to Article 6 (1) 14 of the Act shall be as follows: Provided, That in the case of the school environmental sanitation and cleanup zone of universities and colleges, teachers’ colleges, colleges of education, junior colleges, air and correspondence colleges, open universities, various kinds of schools equivalent thereto, and kindergartens under Article 81 of the Education Act, facilities referred to in subparagraphs 1, 3, 5 and 6 shall be excluded:

15. Facilities for singing practice room business under subparagraph 13 of Article 2 of the Music Industry Promotion Act;

Law as to the truth-finding of the music industry

Article 2 (Definitions) The definitions of terms used in this Act shall be as follows:

13. The term "singing practice room business" refers to the business of providing the general public with facilities, such as video or audio-visual reflectrs, which enable persons to sing in line with musical instruments without any musical instruments; and

Article 22 (Obligations, etc. of Karaoke Business Operators)

(1) Every karaoke machine business operator shall comply with the following requirements:

2. No juvenile shall enter the relevant business place in addition to the hours for admitting him/her prescribed by Presidential Decree: Provided, That this shall not apply where a juvenile is accompanied by his/her guardian, such as his/her parents, or he/she receives written consent for access

6. He/she shall observe the rules prescribed by Presidential Decree for maintaining sound business order.

Enforcement Decree of the Act on Promotion of Music Industry;

Article 8 (Restriction, etc. on Juvenile's Admission Hours)

(1) "Time prescribed by Presidential Decree" in the main sentence of Article 22 (1) 2 of the Act means the time from 9 a.m. to 10 a.m. after 3 p.m.