Plaintiff (Attorney Kim Tae-il, Counsel for the plaintiff-appellant)

Goyang market (Law Firm Ho, Attorneys Kim So-young, Counsel for the plaintiff-appellant)

District Court Decision 2011Guhap650 Decided September 6, 2011

February 29, 2012

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.

The defendant's disposition of refusal to grant permission to the plaintiff on November 19, 2010 shall be revoked.

The same shall apply to the order.

1. cite the judgment of the first instance;

The reasoning for the use of the instant case by the court is as follows: (a) the corresponding part of the judgment of the court of first instance (from the second to the last reduction), except for the following parts: (b) the pertinent part of the disposition of this case is legitimate; (c) pursuant to Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

○ The phrase “before the amendment by Ordinance of the Ministry of Knowledge Economy No. 159, Jan. 23, 2010,” which is fourth below the second being read as “before the amendment by Ordinance of the Ministry of Knowledge Economy No. 212, Nov. 25, 201”.

2. A new part.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

The issue of whether the permission-granting authority grants permission for a business to charge liquefied petroleum gas shall also be determined by examining whether the business conforms to the facility standards and technical standards prescribed in Article 3(4) of the Liquefied Petroleum Gas Act and Article 10(1) [Attachment 3] of the Enforcement Rule of the same Act, and separately, whether the business is permitted or not meets the standards for permission, such as “it shall not harm public safety and interests due to the operation of the business,” and “it shall not install business facilities in an area where the installation of the business is deemed inappropriate in consideration of connection roads, urban planning, population concentration, etc.” (Article 3).

However, Article 4(2) of the Liquefied Petroleum Gas Act provides that detailed matters concerning the requirements for permission under each of the above subparagraphs shall be prescribed by the Ordinance of the relevant local government. Accordingly, Article 6 of the instant Ordinance provides that “The Mayor may restrict permission in any of the following cases pursuant to Article 4(1) of the Liquefied Petroleum Gas Act,” and subparagraph 1 provides that “a filling business in an area within 200 meters in straight line from the outside of a population-populated building” and Article 2 Subparag. 5 of the same Ordinance provides that “a building with population-populated” means a multi-family housing of at least 1,00 square meters in total floor area among multi-family housing listed in attached Table 1.

The defendant, who is the permission-granting authority, is to grant a gas filling business license when it is deemed that the application for permission for a liquefied petroleum gas filling business filed by the plaintiff satisfies both the facility standards and detailed requirements prescribed by the above statutes and

The Plaintiff asserts that Article 6 subparag. 1 of the Ordinance of this case set the indefinite concept of “population-populated building” and that it is null and void as it deviates from the delegated legislative limit under Article 3(4) of the Liquefied Petroleum Gas Act and Article 10(1) of the Enforcement Rule of the Liquefied Petroleum Gas Act, which is a higher-tier related to the safety distance related to the liquefied petroleum gas filling business. However, Article 6 subparag. 1 of the Ordinance of this case set forth detailed matters concerning the requirements for permission under Article 4(2) of the Liquefied Petroleum Gas Act, and its contents differ from the facility standards stipulated under Article 3(4) of the Liquefied Petroleum Gas Act and Article 10(1) of the Enforcement Rule of the Liquefied Petroleum Gas Act, it cannot be concluded that the above provision of the Ordinance goes beyond the delegated legislative limit solely on such grounds. The Plaintiff’s assertion that Article 6 subparag.

3. Conclusion

The judgment of the first instance is unfair on the basis of its conclusion. The judgment of the first instance is revoked and the plaintiff's claim is dismissed.

[Attachment Form 5]

Judges Kim Jong-dae (Presiding Judge)