Whether the disposition of business suspension is appropriate without complying with the hearing procedures such as the arrival period under the Food Sanitation Act (negative)

When the relevant administrative agency intends to take a disposition of business suspension pursuant to the Food Sanitation Act, it must ensure that the business operator has an opportunity to state his/her opinion and to defend himself/herself strictly in compliance with the procedures of the hearing in advance, as well as the period of arrival of the hearing, and even if there is a clear reason under Article 58 of the Food Sanitation Act, the disposition of business suspension is illegal unless the above procedures of the hearing are complied with.

Articles 58 and 64 of the Food Sanitation Act, and Article 37 (1) of the Enforcement Decree of the same Act

[Plaintiff-Appellant] Plaintiff 1 and 10 others (Law Firm Gong100, Jun. 14, 1983)

Madgehy

The head of Seocho-gu Seoul Metropolitan Government

Seoul High Court Decision 89Gu14399 delivered on April 27, 1990

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

As to the ground of appeal by Defendant Litigation Performers

According to Article 58 and Article 64 of the Food Sanitation Act, where the Minister of Health and Welfare or the Mayor/Do governor intends to take measures such as cancellation of the whole or part of permission for business, suspension of business, closure of a place of business, etc., he/she shall give the other party or his/her representative an opportunity to state his/her opinion in advance under the conditions as prescribed by the Presidential Decree: Provided, That this shall not apply where the other party or his/her representative is unable to respond to such measures without justifiable cause or to give an opportunity to state his/her opinion because his/her address is unknown, or where the public health and sanitation is likely to occur. Article 37(1) of the Enforcement Decree of the same Act provides that when he/she intends to request the attendance of the business operator or his/her representative for the purpose of holding a hearing under Article 64 of the Act, he/she shall, without delay, send a written hearing to the business operator or his/her representative seven days before the date of the hearing (10 days before the date of attendance in the case of the Minister of Health and Welfare). The purpose of the hearing system is to provide 18 years for correction of the above.

The court below held that the procedure of the hearing held by the defendant in the disposition of this case was unlawful after the plaintiff sent a written statement of the hearing on November 9, 1989 12:00 on November 9, 1989 and received on November 3, 199, five days before the hearing date in Seocho-gu Office's sanitation, and that the procedure of the hearing held by the defendant in the disposition of this case was unlawful, since the plaintiff acknowledged that the plaintiff was absent on the date of the hearing of this case, the court below did not err in the misunderstanding of legal principles as to the hearing system such as the theory of lawsuit just. The argument is groundless.

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

Justices Yoon Young-young (Presiding Justice)