Whether the disposition of business suspension, etc. may be taken against the transferee after the transfer of business on the ground of the transferor’s violation before the transfer of business (negative)

Article 41 [Attachment 7] of the former Enforcement Rule of the Public Health Act (amended by the Ordinance of the Ministry of Health and Welfare No. 56 of December 17, 1997) provides that "the effect of the disposition taken before the transfer shall be succeeded to the transferee," and "the effect of the disposition taken before the transfer of the business" shall not be interpreted as the suspension of business against the transferee who succeeded to the status of the business after the transfer of the business on the ground of the transferor's violation committed before the transfer of the business. In addition, even if the above provision is interpreted as a provision that the transferee who succeeded to the status of the business after the transfer of the business on the ground of the transferor's violation committed before the transfer of the business, can take measures such as the suspension of business, etc. for the transferee who succeeded to the status of the business after the transfer of the business, the above provision is null and void since it extended the contents of Article 23 (1) of the former Enforcement Rule of the Public Health Act or the order under the same Act in the direction unfavorable to the public.

Articles 8(1), 12(2)1(b), and 23(1) and (4) of the Public Health Act, Article 41 [Attachment Table 7] of the Enforcement Rule of the Public Health Act (amended by Ordinance of the Ministry of Health and Welfare No. 56 of December 17, 1997)

Gangwon-gu (Attorney Kim Jung-jin et al., Counsel for the defendant-appellant)

Gu US Market

The defendant's disposition of business suspension against the plaintiff on November 20, 1997 shall be revoked.

Litigation costs shall be borne by the defendant.

The same shall apply to the order.

1. Details of the disposition;

The following facts do not conflict between the parties, or if Gap evidence Nos. 1, 3-1, 2, 4, 5-1, 2, 7, 9, 1 through 10, and 12 are collected from each description of evidence Nos. 1, 3-1, 3-4, 5-1, 5-2, 1, 7, 9, 1 through 10, 12, they can be admitted, and

A. On October 6, 1995, the Plaintiff constructed a building listed in the attached list and leased accommodation of 2 and 3 floors among them (hereinafter “nives of this case”) to Nonparty Kim-ok.

B. On June 10, 197, at around 23:00 on June 10, 1997, Kim Jong-ok, who was operating a lodging business (or lodging business) with the Defendant’s permission from the Defendant on the 18th day of the pertinent month, had Nonparty 1 and Nonparty 2 (19 years old), a minor female, be accommodated in the instant in the female house, and had adult male and minor female, be accommodated in the instant female house. However, on the 13th day of the pertinent month, the Plaintiff closed the business on the ground of business depression and ordered the Plaintiff to take the instant female house.

C. On June 16, 1997, the Plaintiff reported the succession to the status of the proprietor to the Defendant on the instant inn, and directly operated the lodging business from July 5 of the year.

D. On October 13, 1997, the defendant was notified by the chief of the police station of the previous U.S. as to the act of accommodation of the above minor in the Kimok, and changed the period of the disposition of suspension of business from the 20th of the month to December 19, 197 to the 30th of the year of the previous disposition of suspension of business from the 20th of the year to the date of the first disposition of suspension of business on November 20 of the year, and Article 41 [Attachment 7] of the Enforcement Rule thereof (amended by Ordinance of the Ministry of Health and Welfare No. 56 of December 17, 1997; hereinafter referred to as the "Rules"), among the administrative disposition criteria, 1. General (2) and 2. Sanitary entertainment and sanitation-related business (1) (f) from the date of the previous disposition of suspension of business from the date of the previous disposition of suspension of business from the date of November 20 to the date of the first disposition of suspension of business (hereinafter referred to the 30th of the year).

2. Whether the disposition of business suspension in this case is legitimate

A. The parties' assertion

As to the Defendant’s assertion that the instant disposition of the suspension of business was lawful in light of the details of the disposition and relevant statutes, the Plaintiff asserted that the instant disposition of the suspension of business against the Plaintiff on the ground of the Defendant’s act of minor accommodation in Kim In-ok should be revoked as

B. Relevant statutes

According to Article 12 (2) 1 (b) of the Act, a lodging business operator shall not allow any minor male and female (including a case where a part of an adult is an adult) who is likely to cause a disturbance of public morals to be mixed with him/her or leave him/her to do so. Article 23 of the Act provides that the head of a Si/Gun/Gu may issue an order to close down his/her business or order a suspension of business for a fixed period of not more than 6 months in case where the business operator, etc. violates this Act or any order issued under this Act. The detailed criteria for administrative disposition referred to in paragraph (1) of the same Article are prescribed by Ordinance of the Ministry of Health and Welfare in consideration of the grounds for and the degree of the violation of the administrative disposition.

On the other hand, Article 41 [Attachment 7] of the Rules providing for the detailed criteria for administrative disposition against violations by type of business and for the recovery of violations of the Act, Article 41 [Attachment Table 7] of the Rules provides that in case where a proprietor transfers his business to another person pursuant to Article 8(1) of the Act, the effects of the disposition (including the disposition for which the period of disposition has already lapsed and the period of disposition has already been in progress) taken before the transfer shall be succeeded by the transferee.

(c) Markets:

However, as seen in the circumstances of the disposition, the defendant issued the disposition of this case against the plaintiff who succeeded to the status of the business operator with respect to the above accommodation business from the order of Kimok pursuant to Article 41 [Attachment Table 7] of the general criteria of administrative disposition 1. (2). According to the above provision of the above Article 41, where the business is transferred, "the effects of the disposition already taken prior to the transfer" shall be succeeded to the transferee, and it cannot be interpreted that the transferee who succeeded to the status of the business operator after the transfer of business can be subject to the disposition of business suspension for the reason of the transferor's violation before the transfer of business. In addition, even if the above provision was interpreted as a provision that the transferee who succeeded to the status of the business operator after the transfer of business can be subject to the disposition of business suspension for the reason of the transferor's violation before and after the transfer of business, the above provision cannot be interpreted as a ground for cancellation of business suspension under the Public Health Act or the order of business suspension under the Public Health Act or the order of the same Act.

3. Conclusion

Thus, since the plaintiff's claim of this case seeking the revocation of the disposition of this case was unlawful, it is accepted, and the costs of lawsuit are assessed against the losing defendant. It is so decided as per Disposition.

Judges Yang Dong-dong (Presiding Judge)