2015Gudan77 Cancellation of Disposition of Business Suspension

A person shall be appointed.

Head of the Geum-gu Busan Metropolitan Government

April 8, 2015

May 13, 2015

1. The Defendant’s disposition of business suspension against the Plaintiff on October 27, 2014 is revoked.

2. The costs of the lawsuit shall be borne by the defendant.

3. The disposition stated in Paragraph 1 is suspended until the judgment of the appellate court of this case is pronounced.

The date of the disposition stated in the complaint's purport of the claim is as follows: " January 6, 2015" as "the date of the disposition is written in the complaint's purport of the claim is written in writing on January 10, 2014".

I think).

1. Details of the disposition;

A. On October 27, 2014, the Defendant rendered a disposition for two months of business suspension (hereinafter “original disposition”) pursuant to Article 44(2)4 and Article 75(1)13 of the Food Sanitation Act and Article 89 of the Enforcement Rule of the same Act on the ground that the Plaintiff provided alcoholic beverages to juveniles at a general restaurant (hereinafter “the instant business establishment”) of “C” located in Geum-gu, Busan.

B. The Plaintiff filed an administrative appeal with the Busan Metropolitan City Administrative Appeals Commission on the initial disposition. On December 16, 2014, Busan Metropolitan City Administrative Appeals Commission rendered an adjudication that the original disposition against the Plaintiff was changed to the business suspension 40 days. On January 6, 2015, the Defendant issued a 37-day disposition for the same reason as the original disposition against the Plaintiff (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 2, Eul evidence 2, Eul evidence 2, 6, 8, and 10, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Violation of procedure

In rendering the instant disposition, the Defendant did not send a notice of the disposition to the Plaintiff by telephone prior to the commencement date of the business suspension period, and had the Plaintiff, at the latest, deliver the administrative disposition document to the Plaintiff to the Defendant administrative agency directly from November 11, 2014, the commencement date of the business suspension period. This is unlawful as it excluded the Plaintiff from the opportunity to deal with the instant disposition by filing an application for the suspension of execution.

2) A deviation from and abuse of discretionary power;

In light of the fact that the Plaintiff neglected to verify the identification card for the exposed juveniles, but there was no attempt to impose money on juveniles only once while operating the instant business for ten years, there was a circumstance where one of the juveniles at the time of the instant business was able to provide the Plaintiff with the identification card, and that the instant business was executed as a means of living for the Plaintiff’s family members, a huge impediment to livelihood if the instant disposition is executed, and that the Plaintiff was sentenced to the suspended sentence of a fine of KRW 70,000 in the case of violation of the Juvenile Protection Act (2015 Busan District Court Decision 420,000 in relation to the instant disposition), the instant disposition was unlawful since it was excessively harsh to the Plaintiff, thereby deviating from and abusing the discretionary power.

B. Determination

1) In general, in cases of an administrative disposition expected to be enforced, unless otherwise specifically provided by law, whether or not a certain interval between the notification of the disposition and the time of execution of the disposition should be left to the discretion of the administrative agency concerned, and if necessary to achieve the administrative purpose concerned, there may be cases where the notification of the disposition immediately before the execution of the disposition is given even if necessary.

However, in making an unfavorable administrative disposition to the people, the administrative agency shall give a prior notice of the disposition and give an opportunity to state its opinion, and not only shall present the basis and reason for the disposition in writing, but also inform the matters concerning the method of appeal regarding the disposition.

In light of the contents, etc. of Articles 21 through 26 of the Administrative Procedures Act, it is reasonable to deem that, barring special circumstances, an administrative agency should confirm whether a party to the disposition is entitled to appeal with respect to the disposition prior to the enforcement of the disposition, and prepare the procedure of appeal or notify the party with a reasonable period necessary to prepare for the enforcement of the disposition.

Therefore, in cases where an administrative agency notifies the parties of a disposition without any time to appeal the disposition after the enforcement date of the disposition or when there is no time to appeal the disposition, the administrative agency shall not only lose the opportunity for the parties to appeal, but also shall result in the failure of remedy for the administrative disposition or the family system procedure, and the notification of such disposition is unlawful.

2) As to the instant case, the Defendant did not send a document containing the contents of the instant disposition by mistake to the Plaintiff on the phone prior to the commencement date of the business suspension period, and the fact that the Plaintiff directly sent the administrative disposition document regarding the instant disposition to the Plaintiff on November 11, 2014, which was the commencement date of the business suspension period. There is no dispute between the parties. In light of the aforementioned legal principles, in light of these circumstances, the notification of the instant disposition was actually deprived of the Plaintiff of the opportunity to appeal, including the application for the suspension of execution, and thus, cannot be deemed as unlawful in the relevant procedure. Accordingly, the instant disposition is revoked as it is unlawful without the need to further determine the remainder of the Plaintiff’s remaining arguments regarding deviation from and abuse of discretionary power.

3. Suspension of execution.

- According to the records of this case, it is recognized that the execution of the disposition of this case was urgently required to prevent irrecoverable damage caused to the plaintiff, and there is no other evidence to acknowledge that the suspension of execution is likely to have a significant impact on public welfare. Thus, the execution of this case shall be suspended ex officio until the judgment of the appellate court of this case is rendered.

4. Conclusion

Therefore, the plaintiff's claim of this case is justified, and it is so decided as per Disposition with the assent of all participating Justices.

Warrant of Judge