A. Whether an administrative agency’s license for a comprehensive liquor wholesale business is a subordinate post facto subsidiary officer attached to the license’s conditions (negative), and whether the other party’s consent is necessary (negative)

B. The case holding that the additional officer referred to in the above "A" cannot be deemed to be the additional officer of invalidation in violation of the purpose of the liquor tax law, and cannot be deemed to have exceeded the limit of the contents of the additional officer

A. In granting a license for a comprehensive liquor wholesale business, if an administrative agency attached additional clauses that “if the amount of non-data sales and disguised transaction is 20/100 or more of the total sales amount of alcoholic beverages by the taxable period of value-added tax, the license is revoked,” it cannot be deemed as a so-called ex post facto subsidiary newly attached by an administrative agency after carrying out an administrative act, and such a license does not require the other party’s consent as a so-called unilateral administrative act.

B. Article 18(b) of the former Liquor Tax Act (amended by Act No. 4284 of Dec. 31, 1990) cannot be deemed as an invalid invalidity contrary to the purport of Article 23(1) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 13201 of Dec. 31, 190), and even if an abandonment officer only determines the revocation of license as a restrictive means, compared to the grounds for revocation or suspension of license under Article 17(b) of the Liquor Tax Act, it cannot be deemed as exceeding the limit of the contents of the father officer in light of the principle of proportionality and the principle of prohibition of excessive prohibition, etc.

Articles 11, 17, and 18 of the former Liquor Tax Act (amended by Act No. 4284 of Dec. 31, 1990), Article 23(1) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 13201 of Dec. 31, 1990)

[Plaintiff-Appellant-Appellee] Plaintiff 1 and 1 other (Law Firm Han, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant-appellant-appellee)

Attorney Kim Ba-young, Counsel for the defendant-appellant

Head of the tax office

Busan High Court Decision 91Gu1325 delivered on March 20, 1992

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

1. Judgment on the ground of appeal No. 1 by the Plaintiff’s attorney

The judgment of the court below as to the point that the theory of lawsuit points out (the plaintiff's assertion that the evidence No. 3-1 is forged) shall be justified in light of the relation with evidence as stated by the court below, and it cannot be deemed that there was an error of law by erroneous determination of facts against the rules of evidence, such as misunderstanding the legal principles as to the degree of proof as stated by the theory of lawsuit, etc. In the end, it is nothing more than criticism of the determination of evidence and the recognition of facts belonging to the whole authority of the court below,

2. Determination on the ground of appeal No. 2

The court below rejected the plaintiff company's previous disposition of alcoholic beverage sales business on April 30, 1982; the non-party 1, who had been in charge of general affairs and accounting affairs as an employee of the plaintiff company (hereinafter referred to as "general affairs"); the non-party 1, on behalf of the representative director of the plaintiff company, voluntarily cancelled the above license as of December 28, 1989; the above license was returned to the defendant as of December 29, 1989; the plaintiff company's previous disposition of revocation of the right to cancel the former license was 20/100 or more of the total sales amount of alcoholic beverages for each taxable period of value-added tax; the plaintiff company's previous disposition of revocation of the license was 36/100 or more of the total sales amount of alcoholic beverages; the plaintiff company's previous disposition of revocation of the license was 36/100 or more of the total sales amount of alcoholic beverages; the plaintiff company's previous disposition of revocation of the license was 36/1000 or more of the total sales amount of alcoholic beverages 26.37/16/36/16

If the facts are as determined by the court below, since it is clear that the defendant's new comprehensive liquor wholesale business license for the plaintiff company attached 6 as the conditions of the designation, it cannot be deemed that the designated condition 6 is an incidental post officer, which is a newly attached by the administrative agency after the administrative agency performed an administrative act, and such a license does not require the other party's consent as a so-called unilateral administrative act. Thus, on the premise that the designated condition 6 is an ex post facto subsidiary, and the defendant must obtain the plaintiff's consent at the time of attaching the license, it is obvious that the judgment of the court below has the burden of proving the existence of the plaintiff's consent, and it is not acceptable to argue that there is an error of law by misunderstanding the legal principles on ex post facto subsidiary officers and the burden of proof.

However, according to the reasoning of the judgment of the court below, since the court below seems to have judged whether the defendant gave consent or ratification as to the attachment of such additional clauses by deeming the designated conditions 6 as an ex post facto subsidiary, it is reasonable to reject the plaintiff's above assertion.

3. Determination on the ground of appeal No. 3

The court below held that, among the subsidiary officers of the so-called administrative act, the right to cancel (the meaning of cancellation) is the reservation of the so-called "right to cancel"; where the reason for cancellation is not a reason prescribed by the Acts and subordinate statutes, where the right to cancel a narrow meaning is reserved, or where the necessity for the important public interest arises, etc., the administrative agency which has taken such administrative disposition can cancel such disposition; thus, even though the reason prescribed in subparagraph 6 of the designation conditions does not constitute the reason for cancellation of license under Article 18 of the Liquor Tax Act, the defendant can cancel the license pursuant to subparagraph 6 of the above designation conditions for the plaintiff company which violated the obligations prescribed by the subsidiary officers of the above license. The court below's decision is acceptable in light of the above legal principles as to the revocation of license under Article 18 of the Liquor Tax Act (see Article 18 of the Liquor Tax Act).

The Supreme Court Decision 79Nu28 Decided June 12, 1979 rendered by the party members of the Republic of Korea is not likely to be invoked in this case.

4. Determination on the ground of appeal No. 4

The court below rejected the plaintiff's assertion that the administrative agency may set conditions to be observed when it deems it necessary for preserving liquor tax in accordance with Article 11 of the Liquor Tax Act, and that the designation conditions 6 are merely designated to establish order in the distribution of alcoholic beverages or tax invoice transaction order, regardless of the necessity for preserving liquor tax, and such designation conditions are not effective as they violate Article 11 of the Liquor Tax Act. The court below rejected the plaintiff's assertion on the ground that the establishment of order in the distribution of non-data sales or disguised transactions and the establishment of tax invoice transaction order may directly and indirectly affect the preservation of liquor tax, since the designation conditions 6 cannot be said to be irrelevant to the necessity of preserving liquor tax. In light of the provisions of the related Acts and subordinate statutes, the above determination of the court below is just and acceptable, and even if the designation conditions 6 provides only the revocation of license as a restrictive means like the small theory, compared with the grounds for revocation or suspension of license under Article 17 (b) and Article 18 of the Liquor Tax Act, the contents of the restriction cannot be viewed to go beyond the bounds of the principle of proportionality and the principle of proportionality.

5. Determination on the ground of appeal No. 5

Even when considering the various circumstances in which theories are in progress, the conditions of designation and the disposition of this case are too limited to the activities of the company, and thus, it cannot be deemed that it violates the principle of guaranteeing the freedom of business as stipulated in the Constitution or goes beyond the limits of discretion, such as the theory of the lawsuit, and thus, it cannot be viewed as unlawful. Therefore

6. Therefore, the plaintiff's appeal is dismissed, and the costs of appeal are assessed against the plaintiff who has lost. It is so decided as per Disposition by the assent of all participating Justices.

Justices Choi Jae-ho (Presiding Justice)