[1] Criteria for determining whether the operation of a business which is the requirements for permission under Article 4 (1) 1 of the former Safety Control and Business of Liquefied Petroleum Gas Act impairs public safety and interests

[2] In a case where Party A applied for permission for a liquefied petroleum gas filling business to the Mayor having jurisdiction over the business of filling liquefied petroleum gas, but the competent Mayor was located within an area of not less than 200m from the outer surface of multi-family housing with a total floor area of not less than 1,000m, and thus refused the said application on the ground that Article 6 of the Ordinance on the Standards for Permission for Permission for High-si Gas Business, etc. was contrary to the above provision, the case affirming

[1] Whether public safety and interests are harmed due to the operation of a business which is a requirement for permission under Article 4(1)1 of the former Safety Control and Business of Liquefied Petroleum Gas Act (amended by Act No. 10711, May 24, 201) shall be reasonably determined in light of the purpose of the Safety Control and Business of Liquefied Petroleum Gas Act, various circumstances, such as characteristics of Liquefied Petroleum Gas Act, population density in the area subject to permission, the use, structure and characteristics of buildings adjacent to the building where charging stations are established, and the degree and scope of anticipated risks in the event of accidents due to explosion or fire of liquefied Petroleum Gas, such as the building where the permission is

[2] In a case where Party A filed an application for permission for a liquefied petroleum gas filling business with the Mayor having jurisdiction over the business of filling liquefied petroleum gas, but the pertinent application is located in an area of not less than 200m from the outer surface of multi-family housing with a total floor area of not less than 1,00m, and the above application is rejected on the ground that it is impossible in violation of Article 6 of the former Enforcement Rule of the Liquefied City Gas Business Act, the case affirming the restriction on the distance from the population-populated building (hereinafter “the above distance restriction”) stipulated by the above Municipal Ordinance as the criteria for permission for a liquefied petroleum gas filling business, on the ground that the above distance restriction differs from the outer surface of the storage facilities prescribed as the criteria for facility standards and technology standards to the protection facilities (hereinafter “the above distance restriction”) and its ground and purpose are different, even if the above distance restriction is not consistent with the above separation distance, and thus, it cannot be deemed that the above restriction is null and void due to the delegation of the judgment below under Article 13 of the former Enforcement Rule of the Liquefied Petroleum Gas Business Act (amended by Ordinance).

[1] Articles 3(1) and (4), and 4 of the former Safety Control and Business of Liquefied Petroleum Gas Act (Amended by Act No. 10711, May 24, 201); Article 10(1)1 [Attachment 3] of the former Enforcement Rule of the Safety Control and Business of Liquefied Petroleum Gas Act (Amended by Ordinance of the Ministry of Knowledge Economy No. 173, Mar. 2, 201) / [2] Articles 3(1), (4), and 4 of the former Safety Control and Business of Liquefied Petroleum Gas Act (Amended by Act No. 10711, May 24, 2011); Article 10(1)1 [Attachment 3] of the former Enforcement Rule of the Safety Control and Business of Liquefied Petroleum Gas Act (Amended by Ordinance of the Ministry of Knowledge Economy No. 173, Mar. 2, 2011)

[1] Supreme Court Decision 90Nu6460 Decided April 23, 1991 (Gong1991, 1516) Supreme Court Decision 201Du14784 Decided February 23, 2012

Plaintiff (Law Firm Shin & Kim, Attorneys Kim Tae-il, Counsel for plaintiff-appellant)

Goyang market (Law Firm Ho, Attorneys Kim Chang-ho et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2011Nu34940 decided March 21, 2012

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

Article 3(1) of the former Liquefied Petroleum Gas Safety Control and Business Act (amended by Act No. 10711, May 24, 201; hereinafter “former Liquefied Petroleum Gas Act”) provides that a person who intends to engage in a liquefied petroleum gas filling business (hereinafter “pacting business”) shall obtain permission from the Special Metropolitan City Mayor, Metropolitan City Mayor, Do Governor, or Governor of a Special Self-Governing Province (hereinafter “Mayor/Do Governor”) for each place of business; and Article 4(1) of the former Enforcement Decree provides that a Mayor/Do Governor or the head of a Si/Gun/Gu shall, upon receiving an application for permission or permission for alteration concerning charging business, provide that a person shall not install business facilities in an area deemed inappropriate in consideration of the link, urban planning, population concentration, etc. (Article 3(1)); and further, Article 4(2) of the former Enforcement Decree of the Building Act provides that permission shall be granted in cases where the person satisfies all the requirements prescribed in subparagraph 1 through 3 of the same Article, and that the head of the Si/Gun/Gu may separately prescribe the criteria for permission for the permission for the total quantity of buildings [2].

Meanwhile, Article 3 (4) of the former Liquefied Petroleum Gas Act provides that facility standards and technical level for the filling, collective supply, and sale of liquefied petroleum gas and the manufacture of gas appliances shall be prescribed by Ordinance of the Ministry of Knowledge Economy. Article 10 of the former Enforcement Rule of the Safety Control and Business of Liquefied Petroleum Gas Act (amended by Ordinance of the Ministry of Knowledge Economy No. 173, Mar. 2, 201; hereinafter “former Enforcement Rule of the Liquefied Petroleum Gas Act”) provides that facilities standards and technical standards for filling, etc. of liquefied petroleum gas under Article 3 (4) of the former Enforcement Rule of the Liquefied Petroleum Gas Act shall be set from [Attachment Table 3] and the storage facilities among facilities charging liquefied petroleum gas shall be determined and publicly announced within the range of 24 to 39 meters of the internal distance from the outer surface of the facility to the boundary of the place of business in accordance with subparagraph 1 (a)(C) of the same subparagraph (where storage facilities are installed underground, such distance shall be determined by multiplying the distance by 0.7).

As such, since the standards for permission for filling business and the level of technology are separately prescribed by the Liquefied Petroleum Gas Act, it is possible to conduct filling business in compliance with all the standards. This Ordinance is determined in accordance with Article 4(2) of the former Liquefied Petroleum Gas Act, which provides for detailed matters concerning the requirements for permission as a standard for permission by ordinances of the relevant local government. In addition, whether the operation of a business, which is a requirement for permission under Article 4(1)1 of the former Liquefied Petroleum Gas Act, harms public safety and interests should be determined by comprehensively taking into account the characteristics of Liquefied Petroleum Gas Act, the population density of one unit of the area subject to the permission, the structure and characteristics of the building where the building is installed and its neighboring buildings, the degree and scope of risks likely to occur due to explosion or fire, and other various circumstances, such as the degree and scope of the restriction on the use of the Liquefied Petroleum Gas Act, in light of its own purpose (see Supreme Court Decisions 90Nu6460, Apr. 23, 191; 2011Du14).

Therefore, the judgment of the court below which determined that the provision of this case, which set the distance limitation, is not null and void because it deviates from the limit of delegated legislation, is based on these legal principles, and there is no error in the misapprehension of legal principles as to deviation from the limitation of delegated legislation under Article 3(4) of the former Liquefied Petroleum Gas Act and Article 10(1) of the former Enforcement Rule of the Liquefied Petroleum Gas Act

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)