(영문) 춘천지방법원 2015.1.9.선고 2013구합2967 판결

Defendant’s act of prohibited acts and cancellation of facilities within the school environmental sanitation and cleanup zone, against the Plaintiff on September 17, 2013

The prohibition disposition shall be revoked.

Reasons

1. Details of the disposition;

A. On January 14, 2013, the Plaintiff: (a) obtained a building permit for two underground floors consisting of Class I neighborhood living facilities and business facilities; (b) officetels (a total floor area of 7,939 square meters, 1,453 square meters, 150 square meters, hereinafter “the instant hotel”); and (c) filed an application for the cancellation of the construction permit for the act prohibited by the Defendant’s environmental sanitation and cleanup zone around September 2013, to change the purpose of use of the instant building to accommodation facilities (a hotel, guest room, 150 square meters, hereinafter “the instant hotel”); and (d) the Plaintiff filed an application for the cancellation of the construction permit for the act prohibited by the Defendant’s environmental sanitation and cleanup zone, on the ground of the said hotel’s application for the instant land falls under the school environmental sanitation and cleanup zone prescribed in the School Health Act.

B. On September 17, 2013, the Defendant rendered a decision not to accept an application for prohibited acts and cancellation of facilities pursuant to Article 6(1) of the School Health Act on the ground that “The hotel of this case is located in the rental kindergarten, Doam middle school, and the commercial cleanup zone adjacent to the upper-class high school and adversely affects learning and school health and sanitation” (hereinafter “instant disposition”).

2. Whether a disposition is lawful or not: The facts without a dispute over the recognition; the entries in Gap's evidence 1, 2, and 4 through 7; and the purport of the whole pleadings;

A. The plaintiff's assertion

According to the proviso of Article 6 (1) of the School Health Act and Article 5 of the Enforcement Decree of the School Health Act, it is possible to construct a hotel where it is deemed that it does not adversely affect learning and school health and sanitation in the opposite commercial zone except the absolute Cleanup Zone, which is an area 50 meters away from school entrance and exit, in a straight line. The hotel of this case is located in the opposite Cleanup Zone. The hotel of this case is located in the opposite Cleanup Zone, and the hotel of this case is composed of accommodation facilities, tobacco shop, coffee shop, laundry room, laundry room, etc., and has no adverse impact on learning and school health and health sanitation due to lack of entertainment facilities, and there is no significant difference between the existing officetels and the use of the hotel of this case. The hotel of this case does not seem to have the entrance or inside of the hotel of this case, and many residents living in neighboring areas agree to change the use of the hotel of this case to the hotel of this case, and the application of this case should be revoked by abusing its discretion in order to resolve the problem of accommodation.

B. Relevant statutes

The statutes related to the instant case shall be as shown in the attached Form.

C. Determination

1) Facts of recognition

If the purpose of the entire pleadings is added to the statements in Gap evidence Nos. 4, 10, 11 and Eul evidence No. 1 (including branch numbers), the following facts may be recognized: (a) The application of this case constitutes a general commercial area, a Class-I district unit planning zone, and is located at the side (second line), and the hotel of this case is a plan to be constructed with the second and fifth floor above the ground.

B) The instant application site and the distance between the respective entrances and boundary lines of each of the following schools are as follows:

(c)The Rental Kindergarten is 23 registered students, 20 of Doam Middle Schools, 149 registered students, 30 of 121 registered students from among 121 registered students, etc., and 20 of Doam High Schools are going to and down through the front of the place of the application in this case.

D) In the case of Doam, Doam, and Doam High School, the entrance and interior of the hotel of this case in the school is not visible because of the road higher than two lanes from the school and the cover building between the application site of this case. However, in the case of Doam High School, the entrance and the entrance of the hotel of this case are not visible, but internal activities are shown, and there is no road or shielding building that exceeds two lanes from the hotel of this case.

E) The heads of the above three schools, school operating committees, and parents of the instant three schools oppose the construction of hotels, as they are likely to adversely affect the learning environment and safety when the instant hotel is constructed.

2) Determination

In accordance with the proviso of Article 6 (1) of the School Health Act, measures to determine whether the act and facilities are not harmful to learning and school health with respect to the application for cancellation of prohibited acts and facilities in school environmental sanitation and cleanup zones by the superintendent of education or the superintendent of education, and to cancel or continue such prohibited acts and facilities are belonging to the discretionary acts of the person delegated by the superintendent of education or the superintendent of education, and are unlawful by abusing discretion

In order to do so, it shall be determined carefully by reasonably comparing and comparing various matters such as the acts and the types or scale of the facilities, the distance and location of the school, the kinds and number of students, the environment surrounding the school, and the impact of the acts and facilities on learning, school health and sanitation, etc. in combination with other acts and facilities around the school, and the circumstances such as the infringement of property rights that the other party will suffer due to the prohibition of such acts and facilities, and the principal of the school and the educational authority issued in accordance with the related Acts and subordinate statutes such as the School Health Act.

The decision should be respected to the maximum extent (see Supreme Court Decision 2003Du9541 delivered on December 11, 2003, etc.).

The following circumstances revealed based on the above facts. ① The hotel in this case belongs to the relative Cleanup Zone where the rental school, Doam middle school, and Doamble high school is located, and the hotel in this case is anticipated to have an impact on all of 3 school students, and the head of 3 schools, school operating committees, and parents oppose the construction of the hotel in this case for these reasons; ② the whole or part of the students of the above schools are used directly before or around the site of this case for school attendance; ③ the registration with the head of the competent administrative agency after going through prescribed procedures concerning tourist accommodation in the Cleanup Zone is deemed to have obtained the recognition of the installation of amusement facilities under Article 6 (1) of the School Health Act, or the permission for the entertainment bar business, entertainment bar business, entertainment bar business, etc. (Article 18 (1) 2 and 6 of the Tourism Promotion Act, Article 21 of the Enforcement Decree of the same Act). The hotel in this case cannot be seen as having been subject to the restriction on the Plaintiff’s freedom of education, such as entertainment bar business in various incidental businesses.

3. Conclusion

The plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.