Whether Article 36 [Attachment 14] of the former Enforcement Rule of the Food Sanitation Act prohibiting “the installation of a dance hall in any place of business other than an entertainment tavern” (negative) and whether the establishment and operation of a dance hall in a general restaurant constitutes a violation of the facility standards by type of business prescribed in the above Enforcement Rule, and thus, constitutes a violation of the facility standards by type of business prescribed in

Article 36 [Attachment 14] of the Enforcement Rule of the former Food Sanitation Act (amended by Ordinance of the Prime Minister No. 1068, Mar. 6, 2014; hereinafter “Enforcement Rule”) (hereinafter “Enforcement Rule”) provides that a violation of the facility standards by type of business under Article 36 [Attachment 14] of the Enforcement Rule of the former Food Sanitation Act (amended by Ordinance of the Prime Minister No. 1068, Mar. 6, 2014; hereinafter “Enforcement Rule”) shall be subject to an administrative disposition such as facility repair order [Article 74(1) of the Food Sanitation Act (hereinafter “Act”)] or suspension of business, closure of a place of business, etc. (Article 75(1)6 of the Act) and shall also be subject to criminal punishment (Article 97 subparag. 4 of the Act). The facility standards by type of business shall be referred to as a restricted list of facilities that are essential for each type of business under the Food Sanitation Act. The provisions of the Enforcement Rule shall be strictly interpreted and applied to the other party.

However, Article 89 of the Enforcement Rule does not explicitly stipulate that a general restaurant shall not build a facility that enables customers to enjoy dancing (hereinafter “a dance hall”). However, Article 89 of the Enforcement Rule only provides for the administrative disposition criteria that provides “where a dance hall is installed in a place of business other than an entertainment drinking club,” which is “where a dance hall is installed in a place of business other than an entertainment drinking club” under Article 74 of the Act. However, such administrative disposition criteria are merely the internal discretion of an administrative agency, and thus, they cannot be interpreted as the grounds for the duty of prohibition that is subject to the violation, on the ground that it is merely an act of violation under the discretionary rule that “where a dance hall is installed in a place of business other than an entertainment drinking club.” Moreover, even if examining the specific contents of “standards for facilities of food service business” under Article 84 of the Enforcement Rule of the Act on Standards for Facilities for each type of business, there is no provision prohibiting “cases where a dance hall is installed in a place of business other than an entertainment drinking club.”

In addition, Article 37(1) and (4) of the Act and Article 21 of the Enforcement Decree of the Food Sanitation Act classifys entertainment bar business subject to permission and general restaurant business subject to reporting as specific types of food service business, but it does not necessarily require to regulate violations that undermine business activities based on the classification of types of business, as well as the violation of facility standards by type of business (Article 94(1)3 of the Act) or the violation of the matters to be observed by food service business operators (Article 44(1) and Article 75(1)13 of the Act). Thus, the division of the types of business under the Food Sanitation Act does not constitute a violation of facility standards by type of business.

In addition, since the facility standards for each type of business are set at the minimum standards that must be prepared according to the type of business, limiting the types of use or scope of use of individual facilities that are not explicitly prohibited in the facility standards for each type of business is essentially an area to be regulated as a violation of business practices or a violation of the

In full view of the aforementioned circumstances and the overall structure and contents of the food sanitation statutes, it is difficult to view that the provisions of the Enforcement Rule on the facility standards for each business type prohibit “the installation of a dance hall in a place of business other than an entertainment drinking house” to be prohibited. Thus, separate from the cases where the installation and operation of a dance hall in a general restaurant is subject to criminal punishment for violation of business negligence, such an act constitutes a violation of the facility standards by type of business as prescribed by the Enforcement Rule

Articles 36(1)3, 37(1) and (4), 44(1), 74(1), 75(1)6, and 13, 94(1)3, and 97 subparag. 4, Article 21 of the Enforcement Decree of the Food Sanitation Act, Article 36 [Attachment Table 14] and Article 89 of the former Enforcement Rule of the Food Sanitation Act (Amended by Ordinance of the Prime Minister No. 1068, Mar. 6, 2014);

Supreme Court Decision 2011Du3388 Decided December 12, 2013 (Gong2014Sang, 181)

Plaintiff (Law Firm CSS, Attorneys Ansan-sik et al., Counsel for plaintiff-appellant)

The head of Gangnam-gu Seoul Metropolitan Government (Law Firm Corporation, Attorneys Park Sim-si et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2014Nu52208 decided December 5, 2014

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. As to the second ground for appeal

A. Article 36(1)3 of the Food Sanitation Act (hereinafter “the Act”) provides that a person who intends to engage in food service business, including general restaurants, shall have facilities meeting the facility standards prescribed by Ordinance of the Prime Minister (hereinafter “facility standards by type of business”), and upon delegation, Article 36 of the former Enforcement Rule of the Food Sanitation Act (amended by Ordinance of the Prime Minister No. 1068, Mar. 6, 2014; hereinafter “Enforcement Rule”) provides for the detailed contents of the facility standards by type of business under [Attachment 14] (hereinafter “Enforcement Rule of the instant case”). Meanwhile, Article 74(1) of the Act provides that a business operator may order a business operator who fails to meet such facility standards to repair facilities within a specified period.

The violation of facility standards by type of business stipulated in Article 74(1) of the Enforcement Rule of the instant case is not only subject to administrative disposition, such as facility repair order (Article 74(1)6 of the Act), suspension of business, closure of a place of business, etc. (Article 75(1)6 of the Act), but also subject to criminal punishment (Article 97 Subparag. 4 of the Act). The facility standards by type of business are limited to the standards for facilities inevitably required depending on the type of business under the Food Sanitation Act. In addition, the provisions of the instant Enforcement Rule fall under administrative law that serves as the basis for an indive administrative act, and thus must be strictly construed and applied, and shall not be excessively expanded or analogically interpreted or analogically interpreted in the direction unfavorable to the other party to the administrative act. Even if a teleological interpretation is not entirely excluded, such interpretation does not deviate from the ordinary meaning of the language and text (see Supreme Court Decision 2011Du3388, Dec. 12, 2013).

However, Article 89 Subparag. 3-4 of the Enforcement Rule of the instant case does not explicitly stipulate that a general restaurant shall not build a facility that enables customers to enjoy dancing (hereinafter “a dance hall”). However, Article 89 of the Enforcement Rule only provides for the administrative disposition criteria for “where a dance hall is installed in a place of business other than entertainment tavern” as “where a dance hall is installed in a place of business other than entertainment tavern” under Article 74 of the Act. However, such administrative disposition criteria are merely the internal discretion of an administrative agency. However, it cannot be interpreted as the grounds for the duty of prohibition, which is one of the violations under the administrative agency’s own discretion, and it cannot be interpreted as a “cases where a dance hall is installed in a place of business other than entertainment tavern.” Moreover, even if examining the specific contents of “standards for facilities of food service business” under Article 84 of the Enforcement Rule of the instant case on facilities for each type of business, there is no provision prohibiting “cases where a dance hall is installed in a place of business other than entertainment tavern,” and there is no other provision prohibitinging any obligation to impose such content.

In addition, Article 37(1) and (4) of the Act and Article 21 of the Enforcement Decree of the Food Sanitation Act classifys entertainment bar business subject to permission and general restaurant business subject to reporting as specific types of food service business, but it does not necessarily require to regulate violations that undermine business activities based on the classification of types of business, as well as the violation of facility standards by type of business (Article 94(1)3 of the Act) or the violation of the matters to be observed by food service business operators (Article 44(1) and Article 75(1)13 of the Act). Thus, the division of the types of business under the Food Sanitation Act does not constitute a violation of facility standards by type of business.

In addition, since the facility standards for each type of business are set at the minimum standards that must be prepared according to the type of business, limiting the types of use or scope of use of individual facilities that are not explicitly prohibited in the facility standards for each type of business is essentially an area to be regulated as a violation of business practices or a violation of the

In full view of the aforementioned circumstances and the overall structure and contents of the food sanitation statutes, it is difficult to view that the instant provision on the facility standards for each type of business prohibits “the installation of a dance hall in a place of business other than an entertainment drinking house” as prohibited under the Enforcement Rule of the instant case, and, apart from the fact that the installation and operation of a dance hall in the general restaurant is subject to criminal punishment for violation of business negligence, such an act constitutes a violation of the facility standards by type of business stipulated in the Enforcement Rule of the

B. According to the reasoning of the judgment below, the court below determined that the facility repair order of this case was unlawful on the ground that the facility repair order of this case, which is a general restaurant, is not allowed, even if the facility does not prohibit the installation of sound facilities or special lighting facilities in general restaurants, and such facility is used to allow customers to dance in the business of this case.

Upon examining the records in light of the above legal principles, the judgment of the court below is just and there is no error of law by misapprehending the legal principles as to facility standards by type of business or facility repair order.

2. Regarding ground of appeal No. 1

This part of the grounds of appeal is justified in the judgment of the court below that a dance hall did not exist in the business site of this case. It did not err in the misapprehension of the rules of evidence or the misapprehension of the legal principles as to the concept of dance hall, but as seen earlier, the judgment of the court below that the order to repair the facility of this case was unlawful. The ground of appeal

3. Conclusion

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 Park Sang-ok (Presiding Justice)