209Guhap2434 Revocation of disposition of prohibited acts, etc. in school environmental sanitation and cleanup zone

Ma-O(53 -1)

Gangwon Hongcheon-gun**

Attorney Lee Jae-soo, Counsel for the plaintiff-appellant

Gangwon-do Hongcheon Office of Education

The litigation performer shall be the highest order, the trend;

Attorney Park Jong-soo, Counsel for the plaintiff-appellant

May 20, 2010

June 17, 2010

1. All of the plaintiff's claims are dismissed.

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

A disposition prohibiting the Defendant from filing an application for prohibited acts and cancellation of facilities in each school environmental sanitation and cleanup zone against the Plaintiff on October 26, 2009 and November 30, 2009 shall be revoked.

1. Details of the disposition;

A. On October 12, 2009, the Plaintiff filed an application with the Defendant for the prohibition of prohibited acts and cancellation of facilities in each school environmental sanitation and cleanup zone for the purpose of opening an entertainment tavern on the ground level 163.8 square meters of underground floor among buildings with three above ground reinforced concrete tanks and one story below ground (hereinafter “instant building”). On November 16, 2009, the Plaintiff filed an application with the Defendant for the prohibition of prohibited acts and cancellation of facilities in each school environmental sanitation and cleanup zone for the purpose of operating a billiard room business on the ground level 163.8 square meters of the instant building.

B. On October 26, 2009 and November 30, 2009, the Defendant issued each of the instant dispositions against the Plaintiff’s respective school environmental sanitation and cleanup zones, which prohibit prohibited acts and facilities within the school environmental sanitation and cleanup zones, after deliberation by the school environmental sanitation and cleanup committee.

[Reasons for Recognition] Facts without dispute, Gap evidence No. 1, Eul evidence No. 1 (including virtual 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 straight line from the entrance of the instant building to the boundary line of Hongcheon Elementary School is 201.81m, and the straight line to the boundary line of Hongcheon High School is 213.06m, and the instant building is not located in the relative Cleanup Zone under Article 3(1) of the Enforcement Decree of the School Health Act. Thus, the instant disposition on a different premise is unlawful.

(2) The instant disposition is unlawful as it deviates from and abused discretion, considering the following facts: (a) the building on the rear side and right side of the instant building does not appear in the Hongcheon Elementary School and Hongcheon High School; (b) each of the above school students does not use the front road of the instant building for school attendance at the market around the instant building; and (c) in the school environmental sanitation and cleanup zone as well as prohibited acts and facilities; and (d) the said school environmental sanitation and cleanup zone is in operation of dans, entertainment taverns, inns, singing rooms, and PCs.

(b) Related statutes;

Attached Form is as shown in the attached Form.

(c) Facts of recognition;

(1) Location, etc. of the instant building

(A) The instant building is located in a densely-populated commercial area in Hongcheon-Eup, and both sides of the instant building are mixed with clothing stores, restaurants, mobile phone agents, fireworks, banks, hospitals, etc., and the only bookstore in Hongcheon-Eup is located.

(B) More than half of the building of this case is located within 200 meters from the boundary line of the Hongcheon Elementary School and the Hongcheon High School, but the entrance of the building of this case is located outside 200 meters from the border line of each of the above schools.

(C) At Hongcheon Elementary School and Hongcheon High School, the entrance and inside of the instant building are not visible, and there are shielding buildings between each of the above schools and the instant buildings.

(2) Results of the opinions of the head of Hongcheon Elementary School or Hongcheon High School

(A) The principal of the school suggested the result that 55 or 56 of the 1152 students enrolled at Hongcheon Elementary School and 75 of the 715 students enrolled at Hongcheon Women's High School should use the front road of the building in front of the building in school.

(B) In addition, the head of Hongcheon Elementary School suggested that the student's right character education or career guidance will be difficult due to the harmful environment where many harmful businesses are placed in the vicinity of the building of this case and the other businesses enter the building of this case, and that the business intended by the Plaintiff is likely to have an adverse impact on the physical, mental, and social growth of young children. The head of Hongcheon High School presented his opinion that the school is frequently located in the vicinity of the building of this case and that the school's traffic may have an adverse impact on the student's environment.

(3) Other circumstances

In the relative Cleanup Zone of this case, more than 30 dans and entertainment taverns, inn, inn, inn, inn, and PCs are operated. In most cases, the cancellation disposition was taken prior to the enforcement of the School Health Act, as amended on March 31, 2005, to strengthen the organization and function of the School Environmental Sanitation and Cleanup Committee.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 10, 14, Eul evidence Nos. 2 through 8, 11, 14, 15, and 22, and the purport of the whole of the images and arguments

D. Determination

(1) As to the assertion that it does not fall under school environmental sanitation and cleanup zone

(A) Article 5(1) of the School Health Act and Article 3(1) of the Enforcement Decree of the same Act provide that the school environmental cleanup zone is located in order to ultimately promote the efficiency of school education by protecting health, sanitation, and school environment from the acts and facilities prescribed in the subparagraphs of Article 6(1) of the School Health Act. In light of the purport and text of the statutes, the scope of the school environmental sanitation and cleanup zone among the school environmental sanitation and cleanup zone is not limited to the entrance of the place of business subject to the application for prohibited acts and cancellation of facilities within the school environmental sanitation and cleanup zone from the boundary of the school, but it is reasonable to set the shortest distance to the boundary of the relevant place of business (see Supreme Court Decision 2008Do2152, Jun. 12, 2008).

(B) As to the instant case, more than half of the instant building was included in an area within 200 meters from the boundary line of the Hongcheon Elementary School and the Hongcheon High School. Therefore, the instant building is located in the relative Cleanup Zone among school environmental sanitation and cleanup zones.

(C) Therefore, the Plaintiff’s assertion on this part is without merit.

(2) As to the assertion of deviation and abuse of discretionary power

(A) Under the proviso of Article 6 (1) of the School Health Act, the Superintendent of an Office of Education or a superintendent of an office of education determines whether an application for the cancellation of prohibited acts and facilities in school environmental sanitation and cleanup zones has no adverse effects on learning and school health and sanitation, and thus the prohibited acts and facilities are subject to the discretion of the superintendent of an office of education or the person delegated by the superintendent of an office of education and the measures to continuously cancel (refusing) or prohibit (refusing) such acts and facilities. In order to ensure that such acts and facilities fall under the discretionary acts of the person delegated by the superintendent of an office of education or the superintendent of an office of education and are illegal because they deviate from and abuse discretionary power, the acts and the types and scale of the facilities, the distance from the school, and the number of students, the environment surrounding the school, and the above acts and facilities together with other acts and facilities, and the factors such as the disadvantage of the other party caused by such acts and facilities, etc. shall be reasonably compared and determined (see, e.g., Supreme Court Decision 96Nu253, Oct.

(B) With respect to the instant case, it is difficult to see that each disposition of this case is against the equity on the sole ground that there is a case where there is another harmful business establishment in the same school environmental sanitation and cleanup zone, and that there is little case where the Defendant had been prohibited and released facilities in the past. ④ Elementary school students and high school students are able to know about the instant case at physical or mental level, i.e., ① school attendance at the front of the instant building by Hongcheon Elementary School and Hongcheon High School, and 10% of the students attending school; ② school attendance at the front of the instant building; ② there is a book store and a mobile phone agent frequently available to students in the vicinity of the instant building; ③ there is a case where other harmful business establishment is permitted in the same school environmental sanitation and cleanup zone; ④ there are no cases where the Defendant applied for prohibited acts and removal of facilities for the purpose of the instant case, as long as there are no special circumstances that the Plaintiff would need to protect and remove the facilities for the purpose of the instant case to the maximum extent possible.

(C) Therefore, the Plaintiff’s assertion on this part is without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed in entirety as it is without merit, and it is decided as per Disposition.

Park Hong (Presiding Judge)

Master-rayia

Emigration Constitution

Government-Related Acts and subordinate statutes

School Health Act

Article 5 (Establishment of School Environmental Sanitation and Cleanup Zone)

(1) In order to protect health, sanitation, and learning environments in schools, the superintendent of education shall establish and publicly announce school environmental sanitation and cleanup zones, as prescribed by Presidential Decree. In such cases, no school environmental sanitation and cleanup zone shall exceed 200 meters from the boundary line of a school or the boundary line of a planned school site

(5) The authority of the superintendent of each district office of education pursuant to paragraph (1) may be delegated to the head of each district office of education, as prescribed by Presidential Decree.

(1) No one shall conduct acts and facilities falling under any of the following subparagraphs in a school environmental sanitation and cleanup zone: Provided, That acts and facilities deemed to be harmful to learning and school health and sanitation, after deliberation by the school environmental sanitation and cleanup committee, among the acts and facilities prescribed in subparagraphs 2, 3, 6, 10, 12 through 18 and 20, in zones prescribed by Presidential Decree, shall be excluded:

12. Business in which alcoholic beverages are mainly sold and singing by customers are permitted, and business in which workers engaged in entertainment or entertainment facilities are allowed, and customers are allowed to dance, in addition to the above conduct;

14. A billiard (excluding school environmental sanitation and cleanup zones of kindergartens pursuant to subparagraph 2 of Article 2 of the Early Childhood Education Act and of schools pursuant to subparagraphs of Article 2 of the Higher Education Act);

16. Game providing business pursuant to subparagraph 6 of Article 2 of the Game Industry Promotion Act and business of providing Internet computer game facilities pursuant to subparagraph 7 of the same Article (excluding school environmental sanitation and cleanup zones of kindergartens pursuant to subparagraph 2 of Article 2 of the Early Childhood Education Act and of schools pursuant to subparagraphs of Article 2 of the Higher Education Act);

【Enforcement Decree of the School Health Act

Article 3 (School Environmental Sanitation and Cleanup Zone)

(1) Where the Superintendent of an Office of Education establishes a school environmental sanitation and cleanup zone (hereinafter referred to as the " Cleanup Zone") pursuant to Article 5 (1) of the Act, such zone shall be established by dividing it into the absolute Cleanup Zone and the relative Cleanup Zone, and the absolute Cleanup Zone shall be an area from the entrance door of a school (in cases of a planned site for the establishment of a school, referring to the entrance door of a school to be established) to 500 meters from the direct election, and the relative Cleanup Zone shall be an area excluding the absolute Cleanup Zone from among areas from the boundary line of a school or the boundary line

Article 4 (Supervision of Cleanup Zone)

(1) The Cleanup Zone established pursuant to Article 3 shall be supervised by the head of the relevant school in which the Cleanup Zone is established: Provided, That in cases of a planned school establishment site, the cleanup zone shall be supervised by the person who has established the Cleanup Zone until the school

Article 5 (Zone where Restriction is Relaxed)

"Zone prescribed by Presidential Decree" in the proviso to the part other than the subparagraphs of Article 6 (1) of the Act means the relative Cleanup Zone under Article 3 (1) (where a billiard room is installed pursuant to Article 6 (1) 14 of the Act, referring to the whole Cleanup Zone including the absolute Cleanup Zone). Finally.