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1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
1. The Plaintiff is operating a general restaurant in Gangnam-gu Seoul Metropolitan Government “C”.
On May 15, 2015, around 22:40, around 21:20 on May 17, 2015, and around 22:2:20 on May 22, 2015, the Plaintiff allowed the said general restaurant to have sound and reflective facilities, and allowed customers to singing, and each of the above violations was discovered at each time.
Accordingly, the defendant on July 7, 2015, Articles 44(1), 75(1)13 of the Food Sanitation Act, Article 57 [Attachment Table 17] 6(l) and 89 [Attachment Table 23] of the Enforcement Rule of the same Act.
I. A disposition imposing a penalty surcharge of KRW 9,60,000 in lieu of the business suspension period of two months (hereinafter “instant disposition”) pursuant to subparagraph 4, subparagraph II, subparagraph 10(a) of the General Standards, Article 82(1) of the Food Sanitation Act, Article 53 [Attachment 1] of the Enforcement Decree of the same Act, and Article 53 of the same Act (hereinafter “instant disposition”).
2. Whether the disposition is lawful;
A. In light of the fact that each of the above violations alleged by the Plaintiff was caused by the Plaintiff’s neglect, loss, or management negligence, the Plaintiff’s economic difficulty, the Plaintiff’s aid to neighbors, and the Plaintiff’s volunteer activities, the instant disposition is too harsh to the Plaintiff, and thus, ought to be revoked by unlawful means.
B. Sanction against a violation of the administrative law is a sanction against the objective fact that is a violation of the administrative law in order to achieve the administrative purpose. Thus, a sanction may be imposed without intention or negligence on the violator, unless there exists any justifiable reason not to cause a breach of the duty, such as a circumstance that the violator does not have knowledge of his/her duty, or a circumstance where the performance of his/her duty cannot be expected to be anticipated, etc.
(see, e.g., Supreme Court Decisions 2014Du15139, Apr. 9, 2015; 2010Du24371, Jun. 28, 2012). Whether a punitive administrative disposition deviates from or abused the scope of discretion under social norms is a ground for disposition.