The legal nature and validity of the condition of "limited to the sale of goods for export or sale to foreigners in Korea" attached when granting permission to manufacture and sell preserved beverages;

In light of the provisions of Articles 23(1) and (2), 23-3 subparag. 4 of the former Food Sanitation Act (amended by Act No. 3823 of May 10, 1986), and Articles 1 subparag. 6 and 2 subparag. 4 of the Standards for Permission for Food Manufacturing Business (Public Notice No. 84-38 of the Ministry of Health and Welfare of May 28, 1984), the condition that "limited to the sale to foreigners or foreigners in Korea" attached while granting permission for manufacturing and selling preserved drinking water is different from that of the so-called legal government officer imposed by the law to limit the effect of a specific administrative act, and thus, there is no problem of deviation from the limitation of discretion on conditional terms or abuse of discretionary power. In other words, the conditions of the above public interest need for the public interest, namely, the government officer under the need for the public welfare, pursuing the people's freedom of business, pursuing the basic rights of equality, and infringing the essential contents of the right of equality.

Article 23-3 of the former Food Sanitation Act

Jeju Fisheries Corporation

The Minister of Health and Welfare

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

The imposition of a penalty surcharge of KRW 20,00,000 against the plaintiff on August 30, 1990 by the defendant shall be revoked.

The judgment that the lawsuit costs shall be borne by the defendant.

1. Details of the instant disposition

On August 30, 1984, under the condition that the non-party manufacturing and selling business permission was granted to the non-party manufacturing and selling drinking water (a purified water or underground water to be suitable for drinking) under the condition that the non-party manufacturing and selling business permission was granted to the non-party manufacturing and selling the whole quantity of drinking water by the defendant for export or sale to foreigners in Korea. On June 4, 1990, the plaintiff succeeded to the status of the business operator and completed the report. However, on July 1990, the plaintiff was discovered by selling the preserved drinking water produced by the plaintiff to a national in violation of the above condition of permission. Accordingly, the defendant was discovered by the non-party manufacturing and selling the preserved drinking water to the national in violation of the above condition of permission and was subject to the disposition of the non-party manufacturing and selling the drinking water in lieu of the business suspension for one month, and the plaintiff succeeded to the status of the business operator in violation of the above condition of permission, and thus, it is recognized that the business suspension or the business suspension under Article 58, Article 38 of the Enforcement Decree, and Article 530.

2. The legality of the instant disposition

A. The parties' assertion

The above conditions of permission may cause confusions in administration of water supply by allowing the majority of the citizens who use tap water to use tap water as drinking water, and avoid using tap water as drinking water. In addition, there is a possibility that conflict between income classes by creating ties between the class that drinks preserved drinking water and the class that drinks tap water, and there is a need for public interest to impose certain restrictions on the manufacturing and selling of preserved drinking water by supplying drinking water to foreigners in Korea who do not adapt to Korean tap water, etc. It is valid to impose the above conditions of permission on the basis of the right to pursue happiness under subparagraph 4 of Article 23-3 of the former Food Sanitation Act (amended by Act No. 3823 of May 10, 1986). As such, the above conditions of permission are legitimate by allowing the plaintiff who violated the above conditions of permission to use drinking water as drinking water to use it as drinking water, and thus, it is against the basic rights of the public to prevent any violation of the basic rights of the public from abusing or improving the freedom of permission to use drinking water as drinking water as drinking water.

(b) Markets:

Article 23 (1) of the former Food Sanitation Act provides that any person who intends to conduct a business under the provisions of Article 22 of the same Act shall obtain permission from the Minister of Health and Welfare under the Presidential Decree. Article 23 (2) of the same Act provides that when granting permission under the provisions of paragraph (1), the Minister of Health and Welfare may impose necessary conditions. Meanwhile, Article 23-3 (4) of the same Act provides that permission shall not be granted under the provisions of Article 23 (1) if it is deemed necessary to restrict permission for the public interest and it falls under the business designated by the Minister of Health and Welfare. Based on such provision, Article 23 (2) 6 of the former Food Sanitation Act provides that the person who intends to conduct a business under the provisions of Article 23 (1) of the same Act shall be subject to the provisions of Article 23-3 of the same Act for the improvement of sanitary requirements of the above food manufacturing business (Article 84-38 of the Ministry of Health and Welfare's notification of May 28, 1984).

Next, as to the plaintiff's argument, Article 15 of the Constitution provides that all citizens shall have the freedom to choose an occupation. In principle, the freedom to choose an occupation shall include freedom to choose an occupation. Article 10 of the Constitution provides that all citizens shall have dignity and value as human beings and have the right to pursue happiness. Article 11 (1) of the Constitution provides that all citizens shall be equal before law and shall not be discriminated against in political, economic, social, and cultural life by gender, religion, or social status in all areas of political, economic, social, and cultural life. As the content of the right, all citizens shall have the right to drink clean water that is not contaminated to pursue a life worthy of human beings at their own option and shall not be treated equally as foreigners. However, such freedom and right shall not be unlimited, so that it does not infringe upon the freedom and order of national security or public order under Article 37 (2) of the Constitution.

However, comprehensively taking account of Gap evidence Nos. 3-2 and Eul evidence Nos. 6 without dispute over the establishment of the right to pursue happiness, if the sale of the above drinking water is permitted without limitation, the majority of the citizens who use drinking water can not use tap water as drinking water, and ultimately, it would cause considerable confusion in the administration of food supply by evading the use of drinking water as drinking water, and the possibility of promoting conflicts between the class of drinking water and the class of drinking water. Also, considering the need for the public interest of supplying drinking water as drinking water to foreigners in Korea or overseas workers who are not suitable for Korean tap water, the above permission for the above drinking water manufacturing business cannot be granted to the above drinking water manufacturing business under the premise that the above permission for the preservation of drinking water quality of drinking water can not be granted to the majority of the citizens who use drinking water for drinking water for the purpose of export of drinking water and that the above permission for the sale of drinking water for drinking water can not be granted for the purpose of preserving drinking water quality of the above domestic food manufacturing business under the premise that the above permission for the sale of drinking water for drinking water for public interest is not granted by the above.

Therefore, the defendant's imposition of the above penalty surcharge against the plaintiff who violated the above conditions of permission is legitimate.

3. Conclusion

Therefore, the plaintiff's claim of this case based on the premise that the above disposition of imposing the penalty surcharge is illegal is dismissed as it is without merit, and the costs of lawsuit are assessed against the plaintiff who has lost.

Judges Park Jong-chul (Presiding Judge)