A. Legal nature of permission for public restaurant business under the Food Sanitation Act

(b) Whether it constitutes a change of use requiring permission where a person intends to conduct a business falling under the use of neighborhood living facilities in a development restriction zone;

A. The permitting authority is merely a cancellation of a license for the public restaurant business under the Food Sanitation Act due to its nature, and thus, the permitting authority shall grant permission if the application meets the requirements prescribed by the Act, and shall not refuse the application for permission on grounds other than the grounds for restriction prescribed by the relevant

(b) Where a business falling under the purpose of a building is intended in neighborhood living facilities installed in a development restriction zone, it shall not fall under the alteration for another purpose from the usage as stipulated in each subparagraph of the attached Table of the Enforcement Decree of the Building Act, nor the alteration of use which requires the permission of the head of Si/Gun under the provisions of the Building Act

A. Articles 22 and 24(b) of the Food Sanitation Act; Article 48 of the former Building Act (amended by Act No. 4381 of May 31, 191); Article 2 subparag. 12 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 13655 of May 30, 192); Article 21 of the Urban Planning Act; Article 20(1) of the Enforcement Decree of the same Act; Article 7(1)6(c)2 of the Enforcement Rule of the same Act

A. Supreme Court Decision 91Nu10183 decided Oct. 23, 1992 (Gong1992, 3304)

Plaintiff

The head of Dobong-gu Seoul Metropolitan Government

Seoul High Court Decision 92Gu23522 delivered on November 27, 1992

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

(1) According to the reasoning of the judgment below, the court below recognized that the plaintiff's above disposition of refusal to grant permission to the defendant on March 31, 1992 for public restaurant business in the above neighborhood living facilities as the owner of housing and neighborhood living facilities (34.72 square meters of housing and neighborhood living facilities, 84.00 square meters of neighborhood living facilities, hereinafter only the above neighborhood living facilities) located in Dobong-gu, Seoul and applied for permission to engage in public restaurant business in the above neighborhood living facilities, on the ground that the area in which the neighborhood living facilities in this case are located is a development restriction zone as stipulated in the Urban Planning Act, and determined that the above disposition of refusal cannot be accepted on April 28 of the same year to the plaintiff on the ground that there is no possibility that the above change in the purpose of the purpose of the public use of the above neighborhood living facilities is against the purpose of Article 21 of the Urban Planning Act, Article 7 (1) 6 (c) (2) of the Enforcement Decree of the same Act, and that there is no possibility that it will be no change in the use purpose of the above city and public restaurant.

(2) However, in light of the purport of the provisions of the Food Sanitation Act, permission for public restaurant business under the Food Sanitation Act is merely a cancellation of general prohibition due to its nature, the permission-granting authority shall not necessarily grant permission if the application meets the requirements prescribed in the Act. On the other hand, it shall not refuse the application for permission for reasons other than the restrictions prescribed in the related Acts and subordinate statutes. Meanwhile, Article 48 of the Building Act (amended by Act No. 4381 of May 31, 1991), Article 2 subparag. 12 of the Enforcement Decree of the Building Act (amended by Presidential Decree No. 1365 of May 30, 192), Article 21 of the Urban Planning Act, Article 20(1)6(c) of the Enforcement Decree of the same Act, Article 7(1)6(2) of the Enforcement Decree of the same Act, and Article 7(1) of the Enforcement Decree of the Building Act provides that the act of the head of a Gun is prohibited from changing the purpose of use of a building or a restricted zone.

(3) According to the facts duly confirmed by the court below, since the neighborhood living facilities in this case are already installed in the development restriction zone and are buildings suitable for the public restaurant business, if they intend to conduct business falling under the purpose of the building, it shall not constitute the alteration of use required for the permission of the head of Si/Gun under the provisions of the Building Act or the provisions of the related Acts and subordinate statutes, such as the Urban Planning Act, unless it alters the purpose of each subparagraph of the attached Table of the Enforcement Decree of the Building Act to other purposes, or uses it for other purposes. Article 24 (1) 4 of the Food Sanitation Act provides that the permission may not be granted if it is deemed necessary to restrict the public interest permission, and the Minister of Health and Welfare does not designate the public restaurant business as the restricted object of the permission, and there are no grounds to restrict the above permission under the provisions of the related Acts and subordinate statutes, the rejection disposition in this case does not go against the purport of the above related Acts

Therefore, the court below erred by misapprehending the legal principles on the nature of permission for public restaurant business and the grounds for restricting permission under the Food Sanitation Act.

(4) Therefore, without examining the remaining grounds of appeal, we reverse the judgment of the court below and remand the case to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Sang-won (Presiding Justice)