2015 oldest 8964 Disposition of Imposition of Penalty Surcharges

A

Head of Gwangjin-gu Seoul Metropolitan Government

September 18, 2015

October 6, 2015

1. The plaintiff's claim is dismissed.

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

The imposition of penalty surcharge of KRW 16.8 million imposed on the Plaintiff on June 22, 2015 by the Defendant shall be revoked.

1. Details of the disposition;

A. The Plaintiff operated a general restaurant (hereinafter “instant restaurant”) in the name of “C” in Gwangjin-gu Seoul Special Metropolitan City.

B. On January 1, 2014, 16, the Plaintiff’s employee D was admitted to the police on the ground that he provided liquor to two juveniles in the restaurant of this case. The Seoul Dong District Prosecutors’ Office was a disposition of suspending prosecution against January 23, 2015 and D.

C. On March 9, 2015, the Defendant issued a disposition of business suspension for one month on the ground that the instant restaurant provides alcoholic beverages to juveniles in consideration of the foregoing disposition of suspension of indictment.

D. The Plaintiff filed an administrative appeal on May 11, 2015, on the ground that the business suspension period of one month was harsh, but was dismissed, and around June 2015, the Plaintiff requested the Defendant to change the disposition of penalty surcharge in lieu of one month of business suspension. On June 22, 2015, the Defendant issued a disposition of imposing a penalty surcharge of KRW 16.8 million in lieu of a penalty surcharge of 28 days of business suspension (two days of business suspension in 30 days) upon the Plaintiff’s request (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap 1 through 5, Eul 5, purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) misunderstanding of facts

At the time when two adults enter the restaurant in this case and provide alcohol and food, the plaintiff's employee D was examined. After that, two juveniles were too combined, and they did not conduct an identification card inspection for them, but did not provide them with alcoholic beverages.

In other words, there is no clear evidence as to whether a young juvenile later dices alcohol in the restaurant of this case, and ② even if he drinks alcohol, the plaintiff does not know that he is a juvenile, but does not intentionally provide alcoholic beverages.

(ii)the deviation from and abuse of discretion;

Considering that the age of two juveniles was close to adults, and that the Plaintiff was unaware of whether they were juveniles, there are circumstances to be considered in light of the circumstances, the Plaintiff did not violate other laws and regulations except this case, and that there is economic difficulty, the instant disposition was unlawful as it was excessively harsh to the Plaintiff, thereby abusing and abusing discretion.

B. Determination

1) As to the assertion of mistake of facts

First of all, the argument that juveniles did not drink in the restaurant of this case is that two juveniles drink in the restaurant of this case around November 16, 2014 in full view of the purport of the entire arguments in the statement in the Health Department, Nos. 8 and 9, respectively, as to the assertion that juveniles did not drink in the restaurant of this case. Thus, the plaintiff's above argument is without merit.

Next, as to the assertion that the Plaintiff did not have intention on the part of the Plaintiff, (i) sanctions against the violation of administrative laws are imposed on the objective facts of violation of administrative laws in order to achieve administrative purposes, and thus, not necessarily a real offender, but a person prescribed by law as a person in charge of the violation may be imposed without intention or negligence (see Supreme Court Decision 2012Du1297, May 10, 2012), barring special circumstances (see Supreme Court Decision 2012Du1297, May 10, 2012). Thus, the instant disposition cannot be deemed unlawful in light of the above legal principles, even if the Plaintiff did not have intention to provide alcoholic beverages to juveniles as the Plaintiff’s assertion, and as long as the Plaintiff sells alcoholic beverages in the instant restaurant as the Plaintiff’s owner of a general restaurant, the Plaintiff, as the Plaintiff sold alcoholic beverages in the instant restaurant, must have a duty to prevent the drinking act of juveniles by thoroughly predicting the age of juveniles and thoroughly examining identification cards, and thus, the Plaintiff’s above assertion is not reasonable.

2) As to the assertion of deviation or abuse of discretion

Whether a punitive administrative disposition deviates from or abused the scope of discretion under the social norms shall be determined by comparing and balancing the degree of infringement on the public interest and the disadvantages suffered by an individual by objectively examining the content of the offense committed as the grounds for the disposition, the public interest to be achieved by the relevant disposition, and all the relevant circumstances. In such cases, although the criteria for the punitive administrative disposition are not externally binding on the people or the court, it shall not be in itself conform to the Constitution or laws, or unless there are reasonable grounds to believe that the pertinent disposition is considerably unfair in light of the content of the offense constituting the grounds for the disposition, and the content and purport of the relevant statutes, and the relevant statutes, it shall not be determined that the disposition is an abuse of discretion (see, e.g., Supreme Court Decision 2007Du6946, Sept. 20, 2007).

According to Article 75 of the Food Sanitation Act, Article 75 of the Food Sanitation Act, and Article 89 [Attachment 23] of the Enforcement Rule of the same Act, the grounds for violation of the provision of alcoholic beverages are subject to the disposition of suspension of business for two months in the first violation of the first time. The defendant reduced it to 1/2 in consideration of the plaintiff's suspension of indictment in the relevant criminal case, and thereafter, the defendant issued a disposition of this case imposing a penalty surcharge equivalent thereto upon the plaintiff's request. There is no reasonable ground to see that it would be significantly unfair in accordance with the disposition standards under the relevant provisions, and the case of the provision of alcoholic beverages is not easy, and there is no need to be strict enforcement of the law in order to prevent the frequent appearance of similar cases and to maintain fairness with other business places, even if considering all the circumstances alleged by the plaintiff, it cannot be said that the public interest to achieve the disposition of this case is less than the disadvantage that the plaintiff would incur, and thus, it cannot be deemed that there is an abuse of discretionary authority.

Therefore, the plaintiff's above assertion is without merit.

3. Conclusion

Thus, the plaintiff's claim is dismissed as it is without merit.

Judge Park Han-chul