In a case where there is an illegal reason to suspend the business in a public health business, whether the business can be suspended against the transferee even if the business was transferred or acquired (affirmative)

Article 11(5) of the former Public Health Control Act (amended by Act No. 6155, Jan. 12, 200); Article 11(5) provides that where six months have not elapsed since an order to close down a place of business was issued, the same kind of business as the one subjected to such order may not be conducted in the same place of business; Article 19 [Attachment Table 7] of the Enforcement Rule of the same Act provides that a user business shall be subject to an administrative disposition; Article 19 [Attachment Table 7] of the same Act; Article 3. of the Enforcement Rule of the same Act provides that the order to close down a place of business shall be issued when the third or fourth violation of the principle of business (if the period of suspension of business is less than the period of suspension of business, when the period of suspension of business is less than the number of violation, the order to close the place of business or the order to close the place of business for one violation shall be deemed to have been transferred simultaneously to the public health business office; and it shall be deemed that the transferee of the new public health business establishment has not been established by the new public health business establishment.

Articles 3(1) and (2), 11(1) and (5) of the former Public Health Control Act (Amended by Act No. 6155, Jan. 12, 2000); Article 19 [Attachment 7] of the Enforcement Rule of the Public Health Control Act; Article 19 [Attachment 7] of the Enforcement Rule of the Public Health Control Act; Article 1 of the Administrative Litigation Act / [General Administrative Disposition]

Plaintiff (Attorney Seo Jae-sik et al., Counsel for the plaintiff-appellant)

The head of Seocho-gu

Seoul High Court Decision 2000Nu11378 delivered on January 30, 200

The judgment below is reversed and the case is remanded to Seoul High Court.

1. On April 4, 200, the court below acknowledged that the non-party stored the Red Sea, which was operated by him, and thereafter discovered the plaintiff on the 5th day of the same month that the plaintiff sold the above sources of use to the defendant, and the plaintiff operated the business with a new trade name on the 12th day of the same month. The defendant, on the ground that the non-party knew installed a secret room or kept an instrument that can be used for prostitution, and on the ground that the plaintiff acquired the business, he did not know about the establishment of the secret room, the order for improvement of the facilities was issued against the plaintiff on the 23th day of May of the same year and the order for improvement of the facilities was issued to the plaintiff on the 19th day of the same month on the 196th day of the same month on the 5th day of the same month on the grounds that the non-party violated the former Public Health Act (amended by Act No. 5839, Feb. 8, 199; Act No. 9806, Feb. 9, 20199).

2. However, on April 26, 200, after the plaintiff's commencement of business, nine partitions were discovered in the plaintiff's business establishment, and the defendant ordered the improvement of facilities as to the plaintiff's violation of the facility standards. Thus, the court below's determination that the defendant's facility improvement order was illegal on the premise that the violation of the facility standards was not caused by the plaintiff, but by the non-party, is not caused by the non-party. Thus, the court below's determination was erroneous, which affected the conclusion of the judgment.

In addition, Article 11 (5) of the Act provides that where six months have not passed since an order to close down a business was issued, the same kind of business as the business subject to such order may not be operated in the same place, and Article 19 [Attachment Table 7] of the Enforcement Rule of the Act provides that the order to close down the business shall not be deemed a disposition of suspension of business or the order to close down the business in the case of the third or fourth violation of the principle of business in the user business (if the business was conducted during the period of suspension of business after the order to close down the business was issued, the order to close the business shall be issued in the case of the third or fourth violation of the principle of administrative disposition (if the business was conducted during the period of suspension of business, the first violation shall be made in the case of the business suspension, the order to close the business, and if the number of violations is less than the number of business suspension, the order to close the business

In addition, Article 3(1) of the Act provides that the Minister of Health and Welfare may have a public health business entity maintain and manage certain facilities and equipment, and that the public health business entity does not have any restrictions on the establishment of a place of business after opening a place of business and notifying the Mayor, etc. of the establishment of a place of business under Article 3(2) is premised on the possibility of transfer of a public health business. Thus, even if the transferee notified the new place of business after acquiring it, the transferee does not deny the legal effect of transferring the rights and obligations of the place of business due to transfer or acquisition of business to the transferee. Thus, if there is any illegality of suspending a certain place of business under a public health business, the competent administrative agency should be deemed to be able to suspend the business against the transferee of the place of business even if the business was transferred or acquired.

In the remaining cases, the court below erred by misapprehending the legal principles on the suspension of use business, which affected the conclusion of the judgment, by misapprehending the legal principles on the suspension of use business.

3. Therefore, the judgment of the court below shall be reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Shin Shin-chul (Presiding Justice)