209Guhap2940 Prohibited disposition of prohibited acts and facilities in school environmental sanitation and cleanup zone

Revocation

NewO

Mag-si 00 South-gu 00

Attorney Park Jae-soo, Counsel for the defendant-appellant 000

The head of the District Office of Education for the Gyeongbuk-do Office of Education

April 21, 2010

May 19, 2010

1. The defendant's rejection disposition against the plaintiff on July 31, 2009 against the plaintiff is revoked.

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

The order is as set forth in the text.

1. Details of the disposition;

A. On July 17, 2009, the Plaintiff filed an application with the Defendant for prohibited acts and cancellation of facilities in the school environmental sanitation and cleanup zone to operate a singing practice room on the second floor among the third floor buildings on the third floor of 00 m232.03m (hereinafter “the instant business site”) located in the Nam-gu, Nam-gu, 00-gu, a port owned by the Plaintiff located in the relative Cleanup Zone among school environmental sanitation and cleanup zone under the School Health Act.

B. On July 31, 2009, the defendant rejected the above application from the plaintiff on the ground that it was prohibited from prohibited acts and facilities in school environmental sanitation and cleanup zone after deliberation by the school environmental sanitation and cleanup committee pursuant to the proviso of Article 6 (1) of the School Health Act (hereinafter "disposition of this case").

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The Plaintiff’s prosecution (1) violated the Defendant’s duty to present reasons for disposition under Article 23 of the Administrative Procedures Act in rendering the instant disposition.

(2) The fact that 00 high schools have yet to set up only the scheduled site, and there is no effect on the actual school environmental sanitation, and the main business hours of singing practice room do not overlap with the students, etc., and the neighboring areas of the instant place of business are both commercial areas and are living together with students.

The instant disposition is unlawful as it deviates from and abused discretion, in light of the fact that the instant place of business cannot be seen in the instant scheduled school site, and that the telecom is running in the surrounding area.

(b) Related statutes;

As shown in the attached Form.

C. The facts of recognition (1) The instant place of business is located on the secondary road side of 165 meters away in straight line from the boundary line of the planned site for the establishment of the OO high school in a general commercial area (hereinafter “the instant site”). The instant site is located on the last boundary line of 200 meters away from the boundary line of the instant site.

(2) On the third floor of the building where the instant place of business is located, the party room is in operation. On the north dong of the instant place of business, the number of singing practice rooms, the party room room, the game room, the game room, the entertainment bar, the entertainment bar, and the entertainment bar are concentrated. (3) At the instant place of business, the passage of the instant place of business into the school site, the apartment house, the stud room, etc. are located in the middle dong of the instant place of business, and the land which is still in the site is being used as a garden. The present site of this case is currently being used as a garden.

(4) On March 18, 2005, the Defendant released the prohibited acts and facilities for the operation of a singing practice room from other places within the relative Cleanup Zone of the instant school site on May 24, 2005, as to the 76m of the 5th floor above 160 meters in a straight line from the boundary line of the instant school site, south-gu, 000 square meters, and 763.36m above the 5th floor above the south-gu, 000 square meters, and the Defendant did not actually operate the 5th floor, but did not actually operate the 5th floor. (5) The Defendant did not refuse to file an application for the prohibited acts and the cancellation of facilities for the operation of a singing practice room with respect to other places within the relative Cleanup Zone of the instant school site. (6) At the same time

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 3, 4, Eul evidence Nos. 2, 4 through 7, this Court

result of on-site inspection, the purport of the whole pleading

D. Determination

(1) Whether procedural illegality is procedural

Article 23(1) of the Administrative Procedures Act provides that an administrative agency shall present the basis and reasons for the disposition to the parties in the event of the disposition. In general, in a case where the parties concerned presented reasonable grounds to the extent that they can know the grounds for the disposition, the disposition cannot be deemed unlawful due to such failure, even though the grounds and reasons for the disposition are not specified in the specific provisions and contents (see Supreme Court Decision 200Du8912, May 17, 2002).

According to the above, it can be acknowledged that the defendant made the disposition of this case by clarifying that it was decided to prohibit prohibited acts and facilities in the school environmental sanitation and cleanup zone as a result of the deliberation by the school environmental sanitation and cleanup committee pursuant to the proviso of Article 6 (1) of the School Health Act. Thus, the plaintiff could have known that his application was rejected pursuant to Article 6 (1) of the School Health Act according to the deliberation by the school environmental sanitation and cleanup committee that his application would adversely affect the study and school health and sanitation of high school students.

Therefore, the disposition of this case can be deemed to have been presented with reasonable grounds to the extent that the grounds for the disposition of this case can be known. The defendant did not present the specific grounds for the disposition of this case and the disposition of this case cannot be deemed to have procedural defects violating Article 23 of the Administrative Procedures Act. Thus, this part of the plaintiff'

(2) Whether the discretionary authority is deviates or abused

In accordance with the proviso of Article 6 (1) of the School Health Act, if a person delegated by the superintendent of an office of education or a superintendent of an office of education determines whether the act and facilities are not harmful to learning and school health and sanitation, and the prohibited act and facilities are belonging to the discretionary act of the person delegated by the superintendent of an office of education or the superintendent of an office of education. In order to make such act and facilities illegal by deviating from and abusing the scope of discretion, the act and the type and scale of the act and facilities, the distance and location of the school, the kinds and number of students, the environment surrounding the school, and other acts and facilities in the surrounding area, such as the impact of the act and facilities on school health and sanitation, and the disadvantage that the other party may suffer due to the act and facilities, shall be determined carefully and carefully by reasonably comparing and comparing them with other matters (see Supreme Court Decision 2004Du206, Apr. 23, 2004).

For the instant case, the following circumstances known to the Health Council and through the above findings of recognition:

In other words, the business site of this case is located at the end of the relative Cleanup Zone, and it is determined that the school site of this case belongs to a business district separate from that of this case in light of the surrounding circumstances of the business site of this case. In the school site of this case, not only the entrance and the interior of the business site of this case, but also the building on which the business site of this case is located, but also the building itself does not seem to be easily affected by other buildings, and there is no possibility that noise from business is likely to occur, and it is less likely that students may directly affect the business site of this case. The neighboring business site of this case is formed with a commercial zone where entertainment business is concentrated, and the disposition of this case is difficult to expect any effectiveness in the protection of school environmental sanitation even if other singing practice establishments are already running in the business site of this case. The neighboring business site of this case is not an area where the housing of this case is concentrated, and it is not an area where the plaintiff's right to use the above 00th school site is no more likely to be operated by the defendant.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.

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Judges Park Byung-hee

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A person shall be appointed.

A person shall be appointed.