Plaintiff (Attorney Kim Yong-hwan, Counsel for plaintiff-appellant)

The head of each District Education Office of Seo-gu Seoul Metropolitan City (Attorney Yang Jae-soo, Counsel for defendant-appellee)

July 1, 2010

Gwangju District Court Decision 2009Guhap2504 Decided November 26, 2009

1. Revocation of a judgment of the first instance;

2. The disposition that the Defendant rendered against the Plaintiff on April 16, 2009 prohibited acts and facilities in school environmental sanitation and cleanup zone shall be revoked.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff’s application for cancellation: (a) on April 1, 2009, the Plaintiff filed an application with the Defendant for the cancellation of prohibited acts and facilities in school environmental sanitation and cleanup zone in order to operate the Internet computer game facilities (hereinafter “instant room”) on part of the first floor (172.8 square meters) of the underground floor and the 13rd floor building (hereinafter “instant building”).

B. Defendant’s disposition: The Defendant deemed that the instant bank is located in the relative cleanup zone between ○ Elementary School and Magna middle and high school, following the deliberation by the School Environmental Sanitation and Cleanup Committee, and rejected the Plaintiff’s above application on the 16th of the same month.

[Ground for recognition] Unsatisfy

2. The plaintiff's assertion and relevant statutes

A. The plaintiff's assertion

Among the buildings of this case, the part of operating the instant temporary road is the object of independent sectional ownership. The instant temporary road is located outside the relative Cleanup Zone of each of the above schools, since it is located far away from the boundary of ○ Elementary School or the retaining wall of the above schools, which is the space where the school education of △ middle and high school is practically conducted, at least 200 meters away from the boundary of ○ Elementary School, or from the retaining wall of the above schools, which is the space where the school education of △ middle and high school is practically conducted. While the operation of the instant temporary road is less likely to affect the educational environment, etc. of neighboring students, the disposition of this case is very significant in property disadvantage of the Plaintiff.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

3. Whether the disposition is lawful;

(a) Whether the room of this case is included in the relative Cleanup Zone (the first issue),

(1) The establishment of a school environmental sanitation and cleanup zone under Article 6 of the School Health Act is necessary to protect the health, sanitation, and study environment of a school. However, considering that the prohibition of acts or facilities therefrom inevitably causes serious restrictions on the exercise of the people's property rights, it is necessary to strictly interpret that the determination of whether certain acts or facilities are performed in the school environmental sanitation and cleanup zone does not lead to an excessive restriction on an individual's exercise of property rights. Accordingly, in determining whether a kitchen facility is located in the school environmental sanitation and cleanup zone, deeming all public facilities, such as the entrance, parking lot, and stairs, of the building where the relevant kitchen facility is located, as all facilities, such as the entrance, parking lot, and stairs, which are located in the school environmental sanitation and cleanup zone, to be considered as a prohibited facility that cannot be located in the school environmental sanitation and cleanup zone concerned would result in excessive infringement on an individual's property rights. Therefore, it should be determined in detail by taking into account whether the relevant facilities meet the standards for registration at the time of registration under the Act and subordinate statutes

Meanwhile, Article 26(2) of the Game Industry Promotion Act provides that a person who intends to engage in a long time room business shall register with the head of the Si/Gun/Gu, as prescribed by Ordinance of the Ministry of Culture, Sports and Tourism. Article 16(1) of the Enforcement Rule of the same Act provides that a person who intends to engage in a long time room business shall submit an application for registration of lease, a copy of the business facility, equipment, outline of equipment, etc. In addition, Article 20 and attached Table 4 of the Enforcement Rule provide that a closed space shall not be installed as facility standards for a long time room, a transparent glass window shall be installed, a separate smoking zone shall be installed, and a separate computer facility shall be installed at an independent place. In the registration of a long time room, this does not apply to a person who intends to be equipped with separate facilities, such as a parking lot, elevator, stairs, etc. because it is difficult to view such facilities to be used by an occupant of the building in question, even if such facilities are actually installed within a certain area of the building in question.

Therefore, the standard of determining whether a kitchen facility is located in the school environmental sanitation and cleanup zone should be the boundary of the relevant facility exclusively for the time room (such as the entrance, etc. for the time room), and if the boundary of such exclusive facility is outside the school environmental sanitation and cleanup zone, the relevant facility should not be considered as a prohibited facility in the school environmental sanitation and cleanup zone.

(2) Furthermore, the purpose of Article 5(1) of the School Health Act and Article 3(1) of the Enforcement Decree of the same Act is to ensure the efficiency of school education by protecting health, sanitation, and learning environment from the acts and facilities referred to in each subparagraph of Article 6(1) of the same Act. Since school education is substantially conducted within the facilities of the school, such as the school building (school building), playgrounds, and auditoriums, the “school boundary line” under the above Act and subordinate statutes is not the boundary line of the site for school education, but rather the “ boundary line of the space where school education is practically conducted” (see Supreme Court Decision 2008Do2152, Jun. 12, 2008).

(3) According to the above 1st floor area of the above 1st floor, the above 2nd floor area of the apartment building was installed in the 1st floor area of the above 2nd floor, the above 1st floor area of the apartment building, the above 2nd floor area of the 1st floor and the above 2nd floor area of the 1st floor of the above 2nd floor, the above 1st floor area of the 1st floor of the above 2nd floor, the above 2nd floor area of the 1st floor of the above 2nd floor, the above 1st floor area of the 1st floor of the above 2nd floor, the above 2nd floor area of the 1st floor of the above 2nd floor and the above 3th floor area of the 1st floor, the above 2nd floor area of the above 2nd floor, the above 2nd floor area of the apartment building, the above 1st floor area of the above 2nd floor and the above 3th floor area of the 1st floor.

(4) Also, according to the evidence Nos. 4, 5-1, 2, 10-2, 10-2, 12-1, 12-5, 13-2, and 13 of the above evidence Nos. 12-2, and the result of the on-site verification of the court, ① the building of this case is adjacent to 2-lane as commercial buildings within the Nam-gu △△△ apartment, Nam-gu, Gwangju, and ○ Elementary School is located on the right side (the left side in the case where it is based on it before the sour bank of this case). The building of this case is located in △ middle and high school located in the left side (the right side in the case where it is based on it before the sour bank of this case). ② The building of this case is located in the middle of the above apartment site, which is located in the front side of the above ○○ high school, and the building of this case is located in the front side of the above ○ high school without the wall of this case.

(5) However, according to the result of the appraisal of the appraiser's name at the court's request for a field survey, ① 207.2 meters at the fence fence and cadastral line of the ○○ Elementary School to the neighboring life line to which the instant bank belongs (the entrance to which the instant bank belongs under the foregoing drawings). The shortest election is 216.4 meters at the entrance of the instant bank (the right side of the entrance to the instant bank). ② At the slope of the lower part of the parking lot at △ Metropolitan City, the third party cultivated as dry field and some tin was stored near the lower part, and the lower part of the 207.7m from the upper part of the instant YU to the YUG, and the lower part of the 2007.7m from the front part of the instant YUG to the YGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGE.

(b) Whether the discretionary authority is deviates from or abused (No. 2 dispute)

(1) Pursuant to the proviso of Article 6 (1) of the School Health Act, a City/Do superintendent of education or a person designated by the superintendent of education or a superintendent of education shall determine whether an application for the cancellation of prohibited acts and facilities in school environmental sanitation and cleanup zone has no adverse effects on learning and school health, and the prohibited acts and facilities are belonging to the discretionary acts of the superintendent of education or the person designated by the superintendent of education or the superintendent of education. For the purpose of making it illegal due to deviation from and abuse of discretionary power, it shall be determined carefully by reasonably comparing and comparing various matters, such as circumstances such as the types and scale of the act and facilities, the distance and location of the school, the types and number of students, the environment surrounding the school, and the surrounding activities and facilities together with other acts and facilities, and disadvantage to the other party due to the prohibition of such acts and facilities, including infringement of property rights (see, e.g., Supreme Court Decisions 200Du5678, Sept. 26, 200);

(4) In the case of the above-mentioned 0-party 2-party 2-party 2-party 2-party 2-party 2-party 2-party 2-party 3-party 2-party 2-party 2-party 2-party 3-party 2-party 2-party 3-party 2-party 2-party 3-party 3-party 2-party 3-party 2-party 2-party 3-party 3-party 3-party 5-party 1-party 3-party 3-party 1-party 1-party 2-party 1-party 2-party 1-party 2-party 1-party 2-party 1-party 3-party 1-party 1-party 2-party 1-party 2-party 1-party 1-party 3-party 1-party 1-party 3-party 1-party 3-party 1-party 1-party 3.

4. Conclusion

Therefore, since the disposition of this case is unlawful, the plaintiff's claim of this case seeking its revocation is accepted due to its reasons. Since the judgment of the court of first instance is unfair with different conclusions, the plaintiff's appeal is accepted and the judgment of the court of first instance is revoked, and the disposition of this case is revoked, it is so decided as per Disposition.

[Attachment]

Judges dives (Presiding Judge)

Judges Skjin Hong-kin cannot sign and affix seals on overseas business trip.