A. Whether the issuance of business license certificate under Article 28 of the Enforcement Rule of the Food Sanitation Act is an administrative disposition (negative)

B. The nature of the disposition rejecting an application for replacement in the change of the business type from a general amusement restaurant to a non-exclusive amusement restaurant after the enforcement of the Addenda of the Food Sanitation Act.

(a) The issuance of a business license certificate under Article 28 of the Enforcement Rule of the Food Sanitation Act shall not be an administrative disposition which is the exercise of public authority, since the business license certificate is issued as a factual act accompanied by the business license granted by the permission-granting agency.

B. In the event that the plaintiff, who had been engaged in general amusement restaurant business, changed his internal design and applied for a transfer of a type of business that changed his/her business license to a non-exclusive entertainment restaurant (cabare) with the implementation of Article 3 (3) of the Addenda of the Food Sanitation Act while he/she operated a non-exclusive entertainment restaurant without permission, the defendant (the head of the Gu) applied for a transfer of a type of business that changed his/her business license to a non-exclusive entertainment restaurant (cabare) pursuant to Article 3 of the Addenda of the Enforcement Decree of the Food Sanitation Act, if he/she applied for a transfer of a type of business to the defendant (the head of the Gu) is deemed to have equipped with the facility standards of the Enforcement Rule at the time of enforcement of the above Enforcement Rule, and if he/she is deemed to have obtained confirmation from the business permission authorities, the application for a transfer of a type of business or the permission for a change

Article 9 (1) 3 of the Enforcement Decree of the Food Sanitation Act, Article 9 (3) of the Addenda to the Enforcement Decree of the Food Sanitation Act, Article 28 of the Enforcement Rule of

Supreme Court Decision 84Nu20 Delivered on April 10, 1984

[Defendant-Appellant] Kim Dong-dong, Counsel for defendant-appellant

The head of Eunpyeong-gu

Seoul High Court Decision 83Gu359 delivered on December 9, 1983

The appeal is dismissed.

The costs of appeal shall be borne by the plaintiff.

The grounds of appeal are examined.

1. According to Articles 22 and 23 of the Food Sanitation Act, the food service businesses as prescribed by the Presidential Decree shall meet the facility criteria of the business type as prescribed by the Ordinance of the Ministry of Health and Welfare, and Article 23 of the same Act shall be subject to the permission of the Minister of Health and Welfare, Mayor of Seoul Special Metropolitan City, Mayor of Busan Metropolitan City or Do governor (the provisions of Article 6 of the Act on the Establishment of Daegu Metropolitan Cities and Incheon Metropolitan Cities shall apply mutatis mutandis to the Mayor of Daegu Metropolitan City and Mayor of Incheon Metropolitan City) as prescribed

In addition, Article 9(3) of the Enforcement Decree of the Food Sanitation Act (amended by Presidential Decree No. 10934, Oct. 21, 1982; hereinafter the same), which was enacted pursuant to the above delegation provision, classify the types of business into general amusement restaurants, non-exclusive amusement restaurants, and exclusive amusement restaurants for foreigners (the previous classification was made into passenger service restaurants, cabarets, age clubs, restaurants, and exclusive amusement restaurants for foreigners). In addition, Article 9(3) of the Enforcement Decree of the Food Sanitation Act, which was enacted pursuant to the above delegation provision, (4) of the Enforcement Decree of the Food Sanitation Act (amended by Presidential Decree No. 10934, Oct. 21, 1982).

2. According to the facts established by the court below, the plaintiff, after obtaining permission for amusement restaurants from the defendant on December 11, 1979, operated a general amusement restaurant business under the trade name of 117.1 under the trade name of 105.4 square meters from 405.4 square meters from 117.4 square meters from 1982, where the plaintiff was engaged in the house of reinforced concrete sloveves 3-story stores in Eunpyeong-gu Seoul ( Address omitted) and the amusement restaurant business under the trade name of 117.1 square meters from 1982, after changing the internal design around September 1, 1982, installed a dance hall and installed a dancing entertainment restaurant in the kitchen, and applied for a change in the business type of the previous entertainment restaurant with the permission for the change in the purpose of refusing to grant a dancing entertainment restaurant without permission for the change in the purpose of 19.3 square meters from the permission for the change in the purpose of 19.3 square meters from the previous entertainment permission authority.

3. According to the records, the plaintiff's purport of the claim is that the defendant, as the purport of the claim, sought revocation of the disposition that the defendant refused to grant a permit for a non-exclusive entertainment restaurant to the plaintiff on January 31, 1983. According to Article 28 of the Enforcement Rule of the Food Sanitation Act, when the permission-granting agency grants a business license pursuant to Article 23 (1) of the Act, it provides that the business license shall be issued according to the prescribed form. The issuance of this permit is a fact-finding act when the permission-granting agency grants a business license. Thus, the issuance of the permit is not a administrative disposition, which is an exercise of public

In addition, as stated in paragraph (3) of the Addenda to the above amendment, those who obtained a license for a business for a day-to-day entertainment restaurant and who obtained the confirmation from the competent permission authority that they meet the facility standards for a day-to-day entertainment restaurant under this Decree are considered to have obtained a license for a business for a day-to-day entertainment restaurant under this Decree. As such, as it is considered to have obtained the confirmation from the permission authority that they met the facility standards under attached Table 9 of Article 24 of the Enforcement Rule of the Food Sanitation Act at the time of the enforcement of the above amendment, it is considered to have obtained a license for a business (see Supreme Court Decision 84Nu20, Apr. 10, 1984). In such a case, it is not likely that there is no room for the permission for a change of business type or the permission for a change of business

In light of the records, there is no evidence to deem that the plaintiff had been equipped with the above amended order at the time of the enforcement of the above amended order. In this regard, the court below's decision that the defendant's rejection of the order was lawful is justified, and there is no violation of the rules of evidence, incomplete deliberation, misapprehension of the legal principles, or lack of reasoning, such as the theory of the lawsuit, which is groundless.

Therefore, the appeal is dismissed, and the costs of the appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Jeon Soo-hee (Presiding Justice)