Busan District Court-2013-Gu Partnership-3048 (Law No. 15, 107.10)

If alcoholic beverages are sold to a non-licensed dealer, they shall be subject to grounds for revocation of alcoholic beverage licenses.

Sales of alcoholic beverages to a non-licensed vendor, and issuance of a false tax invoice, which constitutes grounds for revocation of alcoholic beverage licenses.

Article 15 of the Liquor Tax Act, etc. of Suspension of Sales

2015Nu21902 Revocation of revocation of a license for alcoholic beverage wholesale business

○○○ Liquor Co., Ltd.

Head of Suwon Tax Office

Busan District Court Decision 2013Guhap3048 Decided July 10, 2015

November 20, 2015

December 4, 2015

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance court shall be revoked. The defendant's revocation disposition of the license for alcoholic beverage specialized wholesale business rendered to the plaintiff on August 5, 2013 and the disposition of the reduction of alcoholic beverage delivery to each company listed in the separate sheet on September 9, 2013 shall be revoked, respectively.

1. Quotation of judgment of the first instance;

The reasoning for this Court’s explanation is as follows: (a) the reasoning for the judgment of the court of first instance is that of the judgment of the court of first instance except for the following: (b) Article 8(2) of the Administrative Litigation Act; and (c) Article 420 of the Civil Procedure Act.

[Supplementary Use]

"D. Determination"

1) As to the instant disposition of revocation

A) Lending the name of ○○ Company and whether to issue false tax invoices

The facts of recognition as above are as follows: Gap's certificate Nos. 6, 7, and 8 (including virtual number), Eul's certificate Nos. 4 and 9, and witness testimony of both parties of the first instance trial, which can be acknowledged by comprehensively considering the overall purport of the pleadings. ① ○○○○○ entered into a consignment contract with the plaintiff during the suspension period of alcoholic beverage sales license and registered the vehicle with the plaintiff, thereby doing normal transactions with the existing customers. In return, the plaintiff seems to have received 4% of the sales license as commission. ② ○○○○○'s preexisting customer's business was operated exclusively by the ○○ commercial employee, and the plaintiff did not participate in the above business. ③ The employee and the vehicle registered with the plaintiff were returned to the ○○○ commercial employee upon expiration of the suspension period of license; ④ The plaintiff's assertion that the plaintiff's sales contract was concluded with the ○○ commercial employee under the name of the plaintiff's trading partner, but it was difficult for the plaintiff to receive 4% of the sales license of the above company.

B) Whether a person without license related to ○○ Industry, etc. sells alcoholic beverages to a person without license

The fact that the Plaintiff sold the share of entertainment restaurant to the ○○○ Industry, which is a retail license holder for the deemed-sale business, is as seen earlier. As long as the Plaintiff sold the share of the share of entertainment restaurant to the ○○ Industry, etc. without a license for the sale of the share of the share of entertainment restaurant, it is reasonable to view that the Plaintiff sold the share of the share of the share of the share of entertainment restaurant to

C) Whether to sell alcoholic beverages to an unlicensed person related to ○○○

As seen earlier, the fact that the Plaintiff supplied alcoholic beverages to gambling ○○ without a license for alcoholic beverage. There is no evidence to acknowledge that the supplied alcoholic beverages as above were supplied to ○○○○ corporation through gambling. Rather, as seen earlier, the Plaintiff was awarded a favorable judgment by filing a lawsuit claiming damages against ○○○○, and as such, the Plaintiff’s assertion on this part is without merit.

D) Whether the discretionary authority is deviates or abused or not

The issue of whether a certain administrative act is a binding act or discretionary act cannot be uniformly defined, and it shall be determined individually in accordance with the form of a provision on the basis of the pertinent disposition, stay, or language and text (see Supreme Court Decision 2007Du18321, May 29, 2008). Article 15(2) of the Liquor Tax Act, which is based on the instant disposition, provides that "the head of the competent tax office shall revoke a license if a licensee falls under any of the following subparagraphs." In light of the form and language of the above provision, the head of the competent tax office must revoke a license for a liquor sales business in cases where there are grounds for violation of each of the above subparagraphs. In light of the form and language of the above provision, the head of the competent tax office does not necessarily grant the head of the competent tax office a discretionary power to decide whether to revoke a license for a liquor sales business or to change the details of sanctions. Therefore, in cases falling under each of the subparagraphs of Article 15(2) of the Liquor Tax Act, revocation of an administrative disposition is an act of discretion for the Plaintiff.

2) As to the reduction disposition of this case

A) Whether it is irrelevant to the necessity of preserving liquor tax

The purpose of the Liquor Tax Act, which employs a licensing system for manufacture and sales business of alcoholic beverages, is to effectively secure liquor tax revenues and appropriate them for the financial demand of the State, and to supervise the business of collecting liquor tax by a seller of alcoholic beverages who actually collects liquor tax while in charge of the distribution process of alcoholic beverages. In light of the legislative intent of Article 40 of the Liquor Tax Act, which allows a manufacturer or a seller of alcoholic beverages to issue an order necessary for transfer, etc., when deemed necessary for securing the aforementioned licensing system and liquor tax, the establishment of distribution order of alcoholic beverages does not directly and indirectly affect the preservation of liquor tax, and thus, it cannot be deemed as irrelevant to the necessity of preserving liquor tax. Accordingly, the Plaintiff’s assertion on this

B) Whether it violates the principle of statutory reservation

According to Article 40 of the Liquor Tax Act and Articles 45, 47 and 51 of the Enforcement Decree of the Liquor Tax Act, the head of the competent tax office may, if deemed necessary for preserving liquor tax, issue to the manufacturer of alcoholic beverages or the seller of alcoholic beverages necessary orders for raw materials, quality, quantity, time, method, other matters in the manufacture, storage, transfer, or movement of alcoholic beverages. However, the instant reduction disposition is based on the above Acts and subordinate statutes and Article 91(3) of the Liquor Tax Act and the National Tax Service’s notice under Article 2012-23 (Notice of Standard of Reduction of Quantity) of the Liquor Tax Act and Article 2012-23 (Notice of Standard of Reduction of Quantity) of the National Tax Service’s notice. Thus, the Plaintiff’s assertion on this part is without merit.

C) Whether the retroactive application is unlawful

As above, the instant disposition is based on Article 91(3) of the Regulations on the Management of Liquor Tax, Article 3 of the Notice of Standard Quantities of Shipment Quantity for Indecent Manufacturers, Importers and Sellers, the Plaintiff on August 21, 2013.

It was issued by the Busan District Court on the ground that the decision to suspend the effect of the revocation of this case was made, and the above notification was enacted on September 1, 2006 and was amended on August 1, 2007 by the National Tax Service Notice No. 2007-24 (amended by the ex-factory reduction rate of Article 3 from 20% to 50%). Accordingly, the plaintiff's assertion that the above notification was retroactively applied on the grounds prior to the enactment of the notification is without merit.

D) Whether the Administrative Procedures Act is in violation

According to Articles 21(1), 21(4), and 22 of the Administrative Procedures Act, where an administrative agency imposes a duty on a party or imposes a restriction on his rights and interests, it shall notify the party concerned of the fact that the grounds for the disposition, contents and legal grounds thereof, the purport that the party concerned may submit his opinion in advance, the method of handling the case where the party concerned fails to submit his opinion, etc., and even if other Acts and subordinate statutes stipulate that the hearing shall be held or the public hearing shall be held, the party concerned shall be given an opportunity to present his opinion; however, in cases where the party concerned has considerable reasons to recognize that the hearing of opinion is considerably difficult or clearly unnecessary due to the nature of the disposition in question, the reduced disposition in this case may not be deemed unlawful, since there are reasonable grounds to believe that the opinion in this case is considerably difficult or clearly unnecessary due to its nature in light of the following circumstances. Thus, even if the Plaintiff or ○○○○○○○, etc., which is the other party to the disposition in this case, it cannot be deemed unlawful.

(1) Even in accordance with the relevant Acts and subordinate statutes, such as the Liquor Tax Act, the Enforcement Decree of the Liquor Tax Act and the Regulations on the Handling of Liquor Tax Affairs, the same shall not apply to cases where a disposition for reducing shipment quantity under Article 91 (3) of the Regulations on the

② When the requirements of the disposition of this case and the court's decision to suspend the validity thereof are met, the defendant shall take the disposition of this case reduction in accordance with Article 91 (3) of the Liquor Tax Management Regulation. At the time of the disposition of this case, the plaintiff had already been provided an opportunity to hold a hearing on the existence of the reason, etc., and the court's decision to suspend the validity of the disposition of this case is difficult to

③ The instant disposition is a measure to effectively secure liquor tax revenue during the period in which the validity of the instant disposition is suspended according to the court’s decision, and the urgency of the disposition is required, and the validity period of the disposition is limited to the time until the judgment of this case is finalized.

2. Conclusion

Therefore, the judgment of the first instance court is legitimate, and it is so decided as per Disposition by the plaintiff's appeal.