BSP Co., Ltd. (Law Firm LLC et al., Counsel for the defendant-appellant)

The head of the Busan Metropolitan Government Office of Education Education (Attorney Jin-Jin Park, Counsel for defendant-appellant)

March 14, 2019

1. The plaintiff's claim is dismissed.

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

On July 24, 2018, the Defendant revoked the disposition for consideration of the assessment of educational environment against the Plaintiff.

1. Details of the disposition;

A. On March 15, 2018, the Plaintiff submitted to the Defendant an assessment report on the impact on the educational environment (hereinafter “educational environment assessment report”) under Article 6(1) of the Educational Environment Protection Act, along with a summary of design, surrounding map, land use plan, and written confirmation, on six parcels of land in Busan Shipping Daegu ( Address 1 omitted), 18,468,30 square meters (hereinafter “instant project site”) located in the educational environment protection zone, and filed an application for its approval. The Plaintiff submitted an assessment report on the impact on the educational environment under Article 6(1) of the Educational Environment Act (hereinafter “educational environment assessment report”).

A person shall be appointed.

B. On July 24, 2018, the Defendant rejected an application for approval of an assessment of educational environment on the ground that “a condominium business constitutes prohibited acts and facilities in educational environment protection zones under Article 9 subparag. 27 (hereinafter “instant legal provisions”) of the Educational Environment Act” and returned all civil petition documents (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap 4, 6 evidence, Eul 1 evidence (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The Defendant issued the instant disposition under the premise that the instant condominium is a facility corresponding to the “ hotel business” or the “ hotel business” as stipulated in the instant legal provision. However, since each subparagraph of Article 9 of the Educational Environment Act is a provision that serves as the basis for a sedi administrative act that restricts people’s exercise of property rights, it should be strictly construed and applied. Considering the following circumstances, the instant disposition is unlawful since the instant condominium cannot be deemed as a facility corresponding to the “ hotel business” or the “ hotel business.”

① In light of the following circumstances, accommodation business stipulated in Article 2 subparag. 2 of the Public Health Control Act refers to only the rest of accommodation business except the accommodation business under the Tourism Promotion Act among accommodation business under Article 2 subparag. 2 of the same Act. Therefore, a condominium business constituting a accommodation business under the Tourism Promotion Act may not be deemed to be included in the “ accommodation business” stipulated in the relevant legal provisions

In light of the language and text of the legal provision of this case, the term “the instant legal provision of this case is to add only a tourist hotel business that has been controversial in the “ hotel, inn, and inn,” which is a prohibited act in the school sanitation and cleanup zone of the former School Health Act (amended by Act No. 13937, Feb. 3, 2016; hereinafter “former School Health Act”) to the Ministry of Government Legislation, on the premise that the tourist accommodation business is excluded within the scope of the accommodation business.” In addition, in light of the history of the relevant legal provision, it cannot be deemed that the condominium was not a prohibited act in the school sanitation and cleanup zone of the former School Health Act.

Article 3-5 of the Enforcement Decree of the Public Health Act classify accommodation business into general accommodation business and living accommodation business. Article 3-5 of the Enforcement Decree of the Building Act classification is strictly divided by separately stipulating accommodation facilities other than general accommodation business and living accommodation business in relation to accommodation business. The Tourism Promotion Act also regulates only a hotel business and a condominium business as a tourist accommodation business separately. The Act on the Control and Aggravated Punishment of Environmental Offenses, etc. also regulates a number of tourist accommodation businesses under the Tourism Promotion Act separately from accommodation business under the Public Health Control Act, such as the Act on the Control and Aggravated Punishment of Environmental Offenses, etc., and the same is a facility separate from general accommodation business or living accommodation business under the Public Health Control Act.

The reason is that the Act on the Special Cases of Educational Environment is subject to the prohibition of accommodation business is likely to undermine the sound fostering of students. The condominium business is highly likely to adversely affect students' learning and educational environment by being excluded from business establishments banned from employing juveniles under the Juvenile Protection Act and the Enforcement Decree of the same Act. Therefore, it is necessary to separately define it from other accommodation businesses under the Public Health Control Act or hotel businesses under the Tourism Promotion Act.

② Since the Tourism Promotion Act explicitly divides the instant condominiums into hotel business and resort condominium business in relation to tourist accommodation business, etc. under Article 3 subparag. 2, etc., it cannot be deemed that the instant condominiums fall under the category of hotel business under Article 3(1)2 (a) of the Tourism Promotion Act.

2) Preliminaryly, around November 2017, the Defendant expressed its public opinion by expressing to the Plaintiff the opinion that the condominium does not constitute a facility prohibited in an educational environment protection zone in the case of condominiums. The Plaintiff trusted it and carried out the instant business, but the Defendant took the instant disposition against the above opinion. This is against the administrative agency’s public opinion expression, thereby infringing the Plaintiff’s trust interest, and thus, is unlawful.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

(c) Fact of recognition;

1) The instant project site is located at 21m from the entrance and boundary line of the ○ Elementary School located in Busan Metropolitan City ( Address 2 omitted), 158m from the entrance and exit line of the △△△ kindergarten located in Busan Metropolitan City ( Address 3 omitted), and 130m from the boundary line, and part of the instant project site is the relative protection zone, and part of the instant project site is the relative protection zone based on the ○○ Elementary School among the educational environment protection zones under Article 8(1) of the Educational Environment Act, and the relative protection zone based on the △△△△△

2) On March 15, 2018, the Plaintiff submitted an application for the assessment of educational environment to the Defendant regarding the instant project. Accordingly, the Defendant requested the Plaintiff to supplement the matters related to school safety, sunshine, atmosphere quality, noise, vibration, etc. on three occasions on March 19, 2018, and issued a written request for supplementation containing the following matters.

(1) Matters requested to be supplemented by the competent department on March 19, 2018: The competent department shall establish safety measures for school safety, review the relocation and installation of entrance, etc. of construction vehicles, prepare clear safety measures, submit reliable data in relation to air quality, noise and vibration, supplement data, and establish a network for prior consultation prior to the submission of an educational environment assessment report.

② On April 18, 2018, matters requested to be supplemented by the competent department: To prepare a practical measure for school safety, revise the different contents of the statement of educational environment assessment, revise the contents of sunshine analysis, and the project implementer is responsible for and treat all civil petitions arising from construction works. Although resort condominiums business under Article 3(1)2 (b) of the Tourism Promotion Act are not provided for in prohibited acts and facilities under the Educational Environment Act, it is desirable to present specific measures for civil petitions.

③ Supplementary matters requested on June 15, 2018 (attached to a review report on educational environment assessment): It is necessary to revise, supplement, add, etc. in relation to air quality, noise, and vibration related to △△ kindergarten because it does not meet the relevant assessment criteria in relation to the safety of school, air quality, noise, and vibration items in relation to ○○ Elementary School and need to be corrected, supplemented, and added in relation to school safety, air quality, noise, and vibration.

3) On July 2018, the Defendant notified the head of the Busan Metropolitan Office of Education of the administrative guidelines to the effect that “A recreational condominium business under Article 3(1)2(b) of the Tourism Promotion Act constitutes prohibited acts and facilities in educational environment protection zones under the instant legal provision,” and that the said provision is applied to a future condominium business according to the result of a statutory interpretation by the Ministry of Government Legislation.” On July 24, 2018, the Defendant issued the instant disposition based on the said provision.

[Reasons for Recognition] Facts without dispute, each of the above evidence, Gap 5, 7 evidence, Eul 2, the purport of the whole pleadings

D. Determination

1) Determination as to whether the instant condominium constitutes a prohibited facility under the instant legal provision

A) As a matter of principle, the law is a universal norm with the same binding force against many and unspecified persons, so it should be interpreted as an objective validity by clarifying the standard meaning of the law, and it should be ensured that the legal stability is not undermined by maintaining consistency with all the people as much as possible. In addition, since positive law is established in consideration of a universal and typical matter, it is also required to interpret that the law has a concrete validity so that it can be the most reasonable solution appropriate for a specific case in applying the law in various cases that occur in society reality. In short, the purpose of legal interpretation should be to find a concrete feasibility within the extent that does not undermine legal stability. In addition, as far as possible, it should be interpreted faithfully with the ordinary meaning of the language used in the law. Furthermore, the legislative intent and purpose of the law, its legislative intent and purpose, history, harmony with the entire legal order, and the relationship with other Acts and subordinate statutes, so that it can conform to the request of the interpretation of the law as seen earlier, and if there is no need to limit the interpretation of the law in principle, it should be no more than 2030.

B) Examining the language, legislative background, purport, etc. of the relevant statutes in accordance with the aforementioned statutory interpretation method, the condominium business using a tourist accommodation facility, such as the instant condominium, constitutes “ Lodging business” under Article 2 subparag. 2 of the Public Health Control Act, which provides for prohibited acts, etc. in educational environment protection zones under the instant legal provision.

(1) Examining the contents of the relevant laws and regulations, the instant legal provision clearly provides for “tourist accommodation business under Article 2 subparag. 2 of the Public Health Control Act and hotel business under Article 3(1)2(a) of the Tourism Promotion Act” as prohibited acts in educational environment protection zones. Article 2(1)2 of the Public Health Control Act provides that “responding business” refers to the business of providing services such as facilities and equipment so that customers can sleep and stay,” and Article 4 subparag. 1 of the Enforcement Decree of the same Act provides that lodging business is classified into general lodging business and daily lodging business depending on whether cooking facilities are included. Article 3(1)2 of the Tourism Promotion Act provides that tourist accommodation business is divided into hotel business and resort condominium business, and that resort condominium business is provided with accommodation and cooking facilities suitable for such accommodation business to members of the relevant facilities or tourists, or that accommodation business is provided with accommodation facilities suitable for meals, sports, entertainment, etc. under the Enforcement Decree of the Tourism Promotion Act. In principle, the instant legal provision provides that accommodation facilities fall under the category of accommodation facilities under Article 3(2) of the Act.

(2) Next, examining the history, details, etc. of relevant Acts and subordinate statutes, prior to the enactment, February 3, 2016, Article 6(1) of the former School Health Act provides that “any other acts and facilities similar to the provisions of subparagraphs 1 through 19, and any acts and facilities prescribed by Presidential Decree as acts and facilities detrimental to public morals, which are prohibited and facilities in school environmental sanitation and cleanup zone, shall be equipped with specific acts and facilities and facilities under subparagraphs 1 through 19,” and Article 6(1) of the former School Health Act provides that “any other acts and facilities prescribed by Presidential Decree as facilities and acts and facilities detrimental to public morals and customs” in subparagraph 20.

Article 6(1)2 of the former School Health Act provides that specific acts and facilities within an educational environment protection zone shall be prohibited and installed in Article 9 of the Educational Environment Act, which is a legal provision of the same case, shall be removed from the enactment of the same Act. From among those provisions, the part of the " hotel, inn, inn, and inn" under Article 6(1)13 of the former School Health Act shall be excluded from the existing provisions of Article 6(1)27 of the same Act, such as where the hotel, inn, inn, and inn, the hotel, inn, in accordance with Article 6(1)2(a) of the former School Health Act shall be excluded from the existing provisions of Article 6(1)2(a) of the same Act, and the remaining provisions of Article 6(1)20 of the former School Health Control Act shall not be deemed to have been included in the accommodation business without any specific provision of Article 6(1)20 of the same Act. In light of the details and purpose of the enactment of the Educational Environment Act.

(3) It is difficult to view that there is a need to stipulate different provisions from other accommodation businesses under the Public Health Control Act or hotel businesses under the Tourism Promotion Act in light of the impact on students’ learning and educational environment as follows.

① Under Article 2 subparag. 5 (b) of the Juvenile Protection Act and Article 6 (1) subparag. 1 of the Enforcement Decree of the same Act, the term “responding condominium business” among lodging businesses is excluded from business establishments banned from employing juveniles. However, resort condominium business under the Tourism Promotion Act is also stipulated only by specifying that a person lodging as a tourist accommodation business is a member of a facility, co-owner, or a tourist, and it is also the same as the daily lodging business under the Public Health Control Act. As alleged by the Plaintiff, even if a condominium is installed in the instant condominium, such as an ecological pond, floor number, family park, and books, which can be used as a student’s learning and rest space, it cannot be readily concluded that the condominium basically differs in the nature of a public sanitation business establishment, or that there is a very low possibility that a sound act may be done, or that regulation or regulation is very low.

(2) Article 18 (1) of the Tourism Promotion Act provides that a tourist accommodation business operator shall be deemed to have obtained permission for or a report on business prescribed by Presidential Decree, which is a food service business under Article 36 of the Public Health Control Act (Article 36 of the Food Sanitation Act) or a license for or a report on a liquor sales business under Article 8 of the Liquor Tax Act (Article 3). Article 21 of the Enforcement Decree of the Tourism Promotion Act provides that "business prescribed by Presidential Decree under Article 18 (1) 2 of the Act refers to a rest restaurant business, general restaurant business, entertainment bar business, entertainment bar business, and bakeries business under subparagraph 8 (a) through (d) and (f) of Article 21 of the Enforcement Decree of the Food Sanitation Act, and Article 16 (4) of the Tourism Promotion Act provides that "where a tourist accommodation business operator obtains approval for change of a business plan pursuant to the latter part of Article 15 (1) of the same Act, it is difficult to find it difficult for him/her to obtain permission or report on change of use under the Building Act.

(4) Article 3(1)2(a) of the Tourism Promotion Act (excluding accommodation facilities attached to international conference facilities as defined in Article 2 subparag. 3 of the International Conference Industry Promotion Act) provides that prohibited acts and facilities in educational environment protection zones as well as accommodation business under Article 2 subparag. 2 of the Public Health Control Act shall be included in hotel business (excluding accommodation facilities attached to international conference facilities as defined in Article 2 subparag. 3 of the International Conference Industry Promotion Act) (as seen earlier, as long as accommodation business is included in accommodation business under the Public Health Control Act, it seems that there is no reason to believe that hotel business is included in hotel business under the Public Health Control Act), which applies various special provisions under the relevant Acts and subordinate statutes as the history of the former School Health Act and the process of enactment and amendment of the Educational Environment Act are separately regulated in the case of tourist hotel business. Accordingly, there is a need to clarify whether tourist hotel business at the time of the enforcement of the former School Health Control Act falls under prohibited acts and facilities in school environmental sanitation and cleanup zones. As so claimed by the Plaintiff, it cannot be interpreted as a hotel business under the Public Health Control Act.

C) In light of the above legal provision of this case, it is clear that a condominium constitutes a lodging business under Article 2 subparagraph 2 of the Public Health Control Act, which is a prohibited facility and act in an educational environment protection zone under the Educational Environment Act. Thus, there is no illegality in the disposition of this case which rejected the Plaintiff’s application for the approval of an educational environment assessment report for this reason, and in the case of condominiums, there are many circumstances that the Plaintiff is not a prohibited facility in the school health cleanup zone under the former School Health Act, i.e., condominiums, there have been administrative practice as not falling under the prohibited facility under the school health promotion zone under the former School Health Act, or there have been separate regulations under the Tourism Promotion Act in the case of tourist accommodation business.

2) Determination as to whether the instant disposition goes against the principle of trust protection

A) In administrative legal relations, in order to apply the principle of the protection of trust to the acts of an administrative agency, first, the administrative agency should name the public opinion that is the object of trust to the individual, second, the administrative agency should have no reason attributable to the individual when the statement of opinion is well-grounded, third, the individual should have trusted that the name of opinion is well-grounded, and third, the administrative agency should have conducted any act corresponding thereto. Fourth, the administrative agency should have made a disposition contrary to that opinion so that the interests of the individual trusted in that name may be infringed. Lastly, when taking an administrative disposition in accordance with the above statement of opinion, it should not be likely to seriously undermine the public interest or legitimate interests of a third party (see Supreme Court Decision 201Du1512, Nov. 8, 2002, etc.).

B) On April 16, 2018, the Defendant’s request for supplementation of the Plaintiff’s educational environment assessment report, which was notified by the Defendant to the Plaintiff in relation to the application for approval of the Plaintiff’s educational environment assessment report, stated “the student health support division does not specify recreation condominium business as prohibited acts and facilities under the Educational Environment Act, but the civil petition is considerable and the time to present specific measures.” However, the following circumstances acknowledged by the overall purport of each evidence and pleading are as follows. In other words, the Defendant requested several supplementary measures to the Plaintiff three times prior to the instant disposition. The written review of the educational environment assessment report attached to the Defendant’s request for the final supplement, which is not appropriate to the assessment standard. In light of the content of the public inquiry sent and received by the Plaintiff and the Defendant until the instant disposition was taken, it is difficult to view that the Defendant’s above review and supplement request made a statement of opinion on the Plaintiff’s trust in relation to the approval of the educational environment assessment report submitted by the Plaintiff, and there is no other sufficient evidence or circumstance to support the Plaintiff’s application of the principle.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

[Attachment]

Judges Park Jong-soo (Presiding Judge)