(영문) 대구지방법원 2019.12.11.선고 2019구합22981 판결

A. On November 1, 192, the Intervenor joining the Defendant (hereinafter referred to as the “ Intervenor”) was designated as the place of business of the Daegu apartment commercial building (hereinafter referred to as the “instant commercial building”) from the head of Suwon-gu Metropolitan City(hereinafter referred to as the “head of Suwon-gu”) around November 1, 1992, and is running tobacco retail business until now.

B. On February 18, 2019, the Plaintiff filed an application for designation as a tobacco retailer with the head of Suwon-si, the business office of which is 101 A real estate consulting 1) (hereinafter “Plaintiff’s store”).

C. On February 21, 2019, the head of Suwon-si concluded that the distance between the Plaintiff’s store and Schlage’s store in this case satisfies the requirements for restriction on distance under the relevant Acts and subordinate statutes at 55 meters, and rendered a disposition to designate tobacco retailers whose business establishment covers the Plaintiff’s store in this case (hereinafter “the initial disposition in this case”).

D. Accordingly, the intervenor filed an administrative appeal seeking the revocation of the original disposition of this case with the Defendant on April 29, 2019, and the Defendant rendered a ruling revoking the original disposition of this case (hereinafter referred to as the “decision of this case”) on the ground that “The shortest distance between the Plaintiff shop of this case and Bsckis is within 50 meters if measured based on the ordinary method of passage, such as the indication of the layout map of the commercial building of this case and the section section A of the present status photograph (Nos. 1, 2, and 3 connected successively)” (hereinafter referred to as the “instant decision”).

E. The plaintiff's store and BSer are located both at the 17.15m ( = 11m + 65m + 3.5m + 5m on sidewalks 1, 2.5m + 2m linked section hereinafter referred to as "road of this case"), such as the display of the layout map of the commercial building of this case and the current status photograph. The plaintiff's store and BSer are located both in the two roads (hereinafter referred to as "road of this case"). At the center of the roadway, the center line of yellow real lines is marked, and the crosswalk (hereinafter referred to as "road of this case") is installed at the crosswalk at the point 7.8m away from the point at which the commercial building of this case ends.

【Uncontentious facts, Gap evidence 1 through 8 (including branch numbers; hereinafter the same shall apply), Eul evidence 3 and 4, and the purport of the whole pleadings

2. Whether the ruling of this case is lawful

A. The plaintiff's assertion

The right way of pedestrian traffic to move from the Plaintiff shop to Bscer is to use the sidewalk and the crosswalk of this case among the roads of this case, and the distance between the Plaintiff shop and Bscer shall be 55 meters in case of the above way of passage.

Therefore, the distance between the Plaintiff’s store and the Bscer is not in violation of Article 16(2)3 of the Tobacco Business Act and Article 7-3(2)1 of the Enforcement Rule of the same Act, which limit the distance between the tobacco retailer’s store and the Plaintiff’s store to not less than 50 meters. Therefore, the instant judgment should be revoked illegally

B. Relevant provisions

Attached Form 2 is as shown in the relevant Acts and subordinate statutes.

C. Relevant provisions

Article 16 (1) and (2) 3 of the Tobacco Business Act and Article 7-3 (2) 1 of the Enforcement Rule of the same Act provide that "the head of the Gu shall designate a retailer when a person who intends to engage in tobacco retail business applies for the designation of a tobacco retailer, but the head of the Gu shall not apply where the distance between the places of business is within 50 meters, and the provisions of the main sentence of Article 10 (2) of the Road Traffic Act may not apply to the roads (sided roads) where the distance between the outer walls of a specific place of business (store) and the outer walls of another place of business may be measured as the shortest distance depending on pedestrian traffic, in consideration of the provisions of Article 8 and Article 10 (2) 3 of the Road Traffic Act.

D. Determination

In light of the following facts and circumstances, it is reasonable to view that the distance between the Plaintiff’s store and B Scerb within 50 meters is within the scope of 50 meters, based on the evidence mentioned above and the evidence stated in the evidence Nos. 1 and 2 as well as the purport of the entire pleadings. The ruling of this case cannot be deemed unlawful.

Therefore, the plaintiff's assertion is without merit.

1) The purpose of the Tobacco Business Act’s provision on the distance restriction between tobacco retailers’ business offices is to prevent citizens’ health side effects due to circulation of tobacco retailers’ business offices and prevent unreasonable management due to excessive competition among tobacco retailers, thereby protecting the business interests of tobacco retailers (see, e.g., Supreme Court Decision 2008Du402, Apr. 10, 2008). Therefore, in measuring the distance between business offices, in a case where there is a difference between the method of passage under the Road Traffic Act and the method of actual passage, it is necessary to measure the distance between business offices by reflecting the purpose of the Tobacco Business Act and the purpose of the Ordinance.

2) The right method of passage under Articles 8(1) and 10(2) of the Road Traffic Act, which move from the Plaintiff shop in this case to Bscam, is to use the instant crosswalk. However, in measuring the distance between the business offices in the attached Table 3 [Attachment 1] 1], considering the provisions of Article 8, Article 10(2) main sentence and Article 10(3) of the Road Traffic Act, “the road traffic Act” is to be measured and not necessarily to comply with the above provisions. Thus, even if the shortest distance between the Plaintiff shop in this case and Bscams is the same as the display of the instant plot of commercial buildings in this case and the part where pictures of the current status are displayed, it cannot be said that the distance measurement method as prescribed by the Rules of this case. Meanwhile, there is no dispute between the parties that the length of the said household is less than 50 meters

3) If the distance between the business offices in the instant shopping mall is measured by using the instant crosswalk, the distance between Schlage and the business offices facing each other is measured by setting up the instant road. Such measurement method does not conform to the purport of the Tobacco Business Act and the Tobacco Retailer’s provision on the distance restriction between the tobacco retailers’ business offices.

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.