Busan District Court-2014-Gu 20262 (Law No. 17, 2015)

Cho-2014-Divisions-1721 (Law No. 11, 2014)

An act of lending his name to another alcoholic beverage wholesaler and issuing false tax invoices shall be subject to a comprehensive license revocation.

It is legitimate to revoke comprehensive liquor licenses in respect of the act of lending his name to a wholesaler of alcoholic beverages whose business has been suspended and then issuing false tax invoices as if he transacted.

Article 15 of the Liquor Tax Act: Suspension of Sales of Alcoholic Beverages

2015Nu21049 Action to revoke revocation of comprehensive alcoholic beverage licenses

Limited liability Company AA

○ Head of tax office

Busan District Court Decision 2014Guhap20262 Decided April 17, 2015

June 19, 2015

July 10, 2015

1. The plaintiff's appeal is dismissed.

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

제1심 판결을 취소한다. 피고가 2014. 2. 5. 원고에 대하여 한 종합주류도매업면허취소처분을 취소하고, 2014. 2. 21.한 주식회사 BBB코리아, CCC코리아 주식회사, DDD 주식회사 부산직매장, EEE주류 부산지점, BBB코리아◌◌ 주식회사, FFF 주식회사 북부산직매장, GGG맥주 주식회사 부산직매장, 주식회사HH 부산지점, 주식회사 JJJJ ○○물류센터에 대한 주류 출고량 감량처분을 취소한다.

1. Details of the instant disposition

The court's explanation about this part of the grounds for the judgment of the court of first instance and the corresponding part of the grounds therefor.

Therefore, Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act are as is.

this chapter.

2. Whether the disposition of revocation of this case is legitimate

A. The plaintiff's assertion

(i) Chapter 1;

The Plaintiff was aware of the fact that ○○ was unable to provide alcoholic beverages to the customer upon the disposition of suspension of business, and purchased alcoholic beverages from ○○○ to the customer under the Plaintiff’s responsibility and accounting, and sold them to the said customer, and issued false tax invoices. Moreover, the Plaintiff was not subject to the disposition of revocation of license under Article 15(2)4 of the Liquor Tax Act on the premise that the disposition of revocation of license under Article 15(2)4 of the Liquor Tax Act shall be punished as a violation of the Punishment of Tax Evaders Act. Therefore, the disposition of

(ii) Chapter 2;

Although the defendant had already been aware that the plaintiff's operation of such business had already been recognized in 2009, it was unlawful that the revocation of this case was against the principle of trust protection or the abuse of rights.

(iii) Chapter 3;

In light of the fact that the case that was the basis of the disposition of revocation of this case is the case that occurred before Park Jong-A, the representative director of the plaintiff, takes over the plaintiff, the tax revenue reduction was not caused due to this case, the plaintiff's degree of violation is relatively heavy, and the plaintiff's existence itself becomes impossible due to the disposition of revocation of this case, it is unlawful that the disposition of this case violates the principle of proportionality by excessively increasing the number of the disposition of this case, or exceeds and abused

B. Relevant statutes

Attached Form 3 is as listed in the "relevant Acts and subordinate statutes".

C. Determination

1) As to Chapter 1

In addition to the above evidence and evidence No. 7, No. 6, 9, 10, 11 through 19, 22, and 23, the Plaintiff’s ○○○○○○○○○○○ Director KimB, who was sentenced to a fine for negligence No. 9, issued a tax invoice to the Plaintiff and △△△△△○○○○○’s employees during the period of business suspension, and issued the tax invoice under the name of the Plaintiff and △△△△△△△△’s name after purchasing alcoholic beverages from the Plaintiff and △△△△△△△, and stated that the Plaintiff would engage in credit transactions between the Plaintiff and △△△△△△△△△△○○○○○○○○○○○○○○○○○○○○○○○○’s act during the period of business suspension, and then returned to the ○○○○○○○○○○○○○○’s act during the period of business suspension.

2) As to the second proposal

In administrative legal relations, in order to apply the principle of the protection of trust to the acts of an administrative agency, the administrative agency should name the public opinion that is the subject of trust to the individual, and the individual should have trusted and committed any act corresponding thereto by the administrative agency. In other words, the following circumstances acknowledged by the aforementioned evidence, namely, ① the ○○○○ and KimB, etc. received the revocation of alcoholic beverage sales business license and criminal punishment, etc. due to the above acts during the period of suspension of business, and the plaintiff could have anticipated the possibility of such disposition. ② The fact that the defendant did not take the disposition of this case for a certain period alone cannot be deemed to have given any public opinion by the administrative agency. In light of the above, the reasons alleged by the plaintiff alone cannot be deemed to have violated the principle of the protection of trust or to constitute an abuse of rights, and thus, the second chapter of the plaintiff

3) As to the third proposal

Even if a certain administrative act is a binding act or a discretionary act, whether it falls under a discretionary act or a discretionary act can not be uniformly defined, and it should be individually determined in accordance with the form of the provision on the basis of the pertinent disposition, stay or text (see Supreme Court Decision 2007Du18321, May 29, 2008). Article 15(2) of the former Liquor Tax Act, which is based on the instant disposition, provides that "the head of the competent tax office shall revoke a license in cases where a person who has obtained a license for a liquor sales business falls under any of the following subparagraphs. In light of the form and language of the above provision, the head of the competent tax office must revoke a license for a liquor sales business, and the head of the competent tax office does not have the discretion to decide whether to revoke a license for a liquor sales business, or to change the details of the relevant disposition by a minor disposition:

Therefore, in cases falling under any of the subparagraphs of Article 15 (2) of the former Liquor Tax Act, an administrative disposition revoking a liquor sales business license is interpreted as a binding act in which discretion is not recognized to the defendant. Therefore, the plaintiff's third-party disposition on the premise that the disposition in this case is a discretionary act is without merit.

3. Whether the reduction disposition of this case is legitimate

A. The plaintiff's assertion

(i) Chapter 1;

The provision on the handling of liquor tax affairs is an instruction without legal basis and is null and void because it is in violation of the principle of statutory reservation, and the disposition of reducing liquor tax in this case is unlawful.

(ii) Chapter 2;

As long as an administrative agency has filed an administrative litigation against the cancellation of this case and received a decision to suspend the execution, the administrative agency has respected this case’s reduction disposition and infringed the Plaintiff’s constitutional right to trial and freedom of business, the instant reduction disposition is unlawful.

(iii) Chapter 3;

In the disposition of reducing this case, which is an indivative disposition, it is unlawful since it did not provide the Plaintiff or BB Korea Co., Ltd., the other party to the disposition, with an opportunity to hold hearings, etc. under the Administrative Procedures Act.

B. Determination

1) As to Chapter 1

According to Article 40 of the Liquor Tax Act and Articles 45, 47 and 51 of the Enforcement Decree of the Liquor Tax Act, the head of the competent tax office may, if deemed necessary for preserving liquor tax, issue necessary orders to the manufacturer of alcoholic beverages or the seller of alcoholic beverages for raw materials, quality, quantity, time, method, other matters in the manufacture, storage, transfer, acquisition or movement of alcoholic beverages.

However, the instant reduction disposition was made against BB Korea Co., Ltd. pursuant to the above statutes and Article 91(3) of the Regulations on the Management of Liquor Tax based thereon, and the National Tax Service Notice No. 2012-23 (Notice of Maximum Quantity Standard) and thus, it cannot be deemed that the legal basis is in violation of the principle of statutory reservation. Thus, the Plaintiff’s first proposal is without merit.

2) As to the second proposal

In light of the following circumstances, the instant reduction disposition cannot be deemed as unfairly infringing the Plaintiff’s constitutional right to trial and freedom of business. Thus, the Plaintiff’s second chapter is groundless.

① The instant reduction disposition is consistent with the purpose of Article 40 of the Liquor Tax Act that allows a manufacturer of alcoholic beverages or a vendor of alcoholic beverages to issue an order necessary for transfer, etc., when it is deemed necessary for preserving liquor tax, to ensure the effective securing of liquor tax revenues and meet the financial demand of the State, while in charge of the distribution process of alcoholic beverages, to supervise the business of collecting liquor tax by a seller of alcoholic beverages who actually collects liquor tax.

② In light of the fact that the instant reduction disposition is limited to 50% of the average monthly shipment in the 12-month immediately preceding the reduction, etc., the instant reduction disposition is appropriate as a means to achieve the purpose of establishing order of alcoholic beverage trade and normalization of the distribution structure.

3) As to the third proposal

According to Articles 21(1), 21(4), and 22 of the Administrative Procedures Act, where an administrative agency imposes a duty on a party or imposes a restriction on his/her rights and interests, it shall notify the party concerned of the fact that the grounds for the disposition, contents and legal grounds thereof, the purport that he/she may submit his/her opinion, the method of handling the case where he/she fails to submit his/her opinion, etc., and, even in cases where other Acts and subordinate statutes provide that a hearing shall be held or a public hearing shall be held, the party concerned shall be given an opportunity to present his/her opinion. However, in cases where a reasonable ground exists to deem that hearing of opinion is considerably difficult or clearly unnecessary due to the nature of the disposition in question, the reduction of the amount of the disposition in this case may not be deemed illegal, even if the party concerned in this case did not provide the plaintiff or BB Korea Co., Ltd. a party to the disposition with an opportunity to hear his/her opinion, etc. under the Administrative Procedure Act.

(1) Even in accordance with the relevant Acts and subordinate statutes, such as the Liquor Tax Act, the Enforcement Decree of the Liquor Tax Act and the Regulations on the Handling of Liquor Tax Affairs, the same shall not apply to cases where a disposition for reducing shipment quantity under Article 91 (3) of the Regulations on the

② When the requirements of the disposition of this case and the court's decision to suspend the validity thereof are met, the defendant shall take the disposition of this case reduction in accordance with Article 91 (3) of the Liquor Tax Management Regulation. At the time of the disposition of this case, the plaintiff had already been provided an opportunity to hold a hearing on the existence of the reason, etc., and the court's decision to suspend the validity of the disposition of this case is difficult to

③ The instant disposition is a measure to effectively secure liquor tax revenue during the period in which the validity of the instant disposition is suspended according to the court’s decision, and the urgency of the disposition is required, and the validity period of the disposition is limited to the period until the judgment of the instant case

4. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.