2012Nu584. Revocation of a disposition rejecting a report on business of a public health business establishment;

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Busan Shipping Daegu

Busan District Prosecutor's Office

OOO representative director

Attorney Lee Han-nam, Counsel for the plaintiff-appellant

Law Firm Dun, Attorney Yoon Young-soo, Counsel for the plaintiff-appellant-appellant-appellant-appellant

Head of the Busan Metropolitan Government Maritime Affairs Office

A litigation performer O, KimO, SongO, KimO-O

Attorney Park In-ok, Counsel for the plaintiff-appellant

◆◆◆◆◆◆ 주식회사

Daegu Dong-gu

Busan Shipping Daegu

representative director ○○

Law Firm Cheongdon, Attorney Gyeong-dilution

Busan District Court Decision 2010Guhap5685 Decided December 30, 2011

July 11, 2012

July 25, 2012

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. The total cost of the lawsuit shall be borne by the Plaintiff, including the cost of participation.

1. Purport of claim

On November 19, 2010, the Defendant revoked the disposition on the return of business report to the Plaintiff of public health business (or accommodation business).

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Details of the disposition;

The reasoning for this part of the court's explanation is the same as that for the corresponding part of the judgment of the court of first instance. Thus, it is accepted by Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2. Whether the disposition is lawful;

A. The plaintiff's assertion

Defendant and Intervenor (hereinafter “Defendant, etc.”) did not have the facilities or equipment of accommodation business as prescribed by the Decree on the Public Health Control Act, and the business report should be accepted unless there exist grounds for rejection as prescribed by the relevant Acts and subordinate statutes, such as the Public Health Control Act. However, the Defendant did not have the facilities or equipment prescribed by the relevant Acts and subordinate statutes, and rejected the report based on the authoritative interpretation of the Ministry of Health and Welfare, which is not the legal order, and thus, the wife of this case is unlawful.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) Specific grounds for the instant disposition

Considering the structure of the instant condominium building, the status of the business or report of the Plaintiff and the Intervenor in front and rear front of the instant condominium building, the circumstances leading to the Defendant’s disposition and the details of the Defendant’s response to inquiries related to the grounds for disposition, etc., it is reasonable to deem that the instant grounds for disposition did not meet the reporting requirements prescribed by the Decree on the Public Health Control Act because the Plaintiff did not meet the requirements for the instant grounds for disposition, such as the content and purport of the response to relevant inquiries, because the Plaintiff did not meet the facilities of the lodging business or the facilities of the lodging business, the entertainment business, and the route of the response to inquiries related to the grounds for disposition. (other than the grounds for disposition that merely contravene

2) Whether the grounds for the disposition are lawful

The fact that the Plaintiff reported the accommodation business to the Defendant without having any entertainment entertainment expenses is without dispute between us and us. We examine whether the instant disposition can be taken to return the accommodation business report on the ground that the Plaintiff did not have entertainment entertainment expenses and entertainment expenses at the time of reporting the accommodation business.

Article 3(1) of the former Public Health Act (amended by Act No. 5839 of Feb. 8, 1999; Article 2 of the former Enforcement Rule of the Public Health Act (amended by Act No. 2 of the Addenda of the Public Health Control Act, No. 147 of Mar. 16, 200); Article 2 [Attachment 1] 1.(a) of the former Enforcement Rule of the Public Health Act (amended by Ordinance of the Ministry of Health and Welfare, No. 147 of Mar. 16, 200); (d) with respect to entertainment facilities or equipment for accommodation, entertainment facilities and entertainment facilities must be installed with at least 30 rooms in the case of hotel business; and in the case of hotel business, entertainment facilities should be installed with more than 10 guest rooms; and in the case of a hotel business, the entertainment business should be installed with more than 10 guest rooms, the detailed criteria were set that the entertainment business does not separately impose an obligation of entertainment or entertainment.

Article 3 (1) of the Public Health Control Act (hereinafter referred to as the "Act") provides that "a person who intends to engage in a public health business shall have facilities and equipment prescribed by Ordinance of the Ministry of Health and Welfare and report to the head of the Gu, etc.," and Article 3 (3) provides that "the method and procedure for reporting shall be prescribed by Ordinance of the Ministry of Health and Welfare." Accordingly, Article 2 of the former Enforcement Rule of the Public Health Control Act (amended by Ordinance of the Ministry of Health and Welfare No. 43, Feb. 10, 201; hereinafter referred to as the "Enforcement Rule") does not provide for the lodging business without providing for detailed facilities and equipment only with respect to public bath business, immigration and beauty business, laundry business, and sanitary management service business.

In addition, Article 3 of the Enforcement Rule provides that a person who intends to run a public health business shall prepare the facilities and equipment prescribed by the Ordinance of the Ministry of Health and Welfare for each type of the public health business and report to the head of the Gu, etc. by submitting the prescribed report along with the business facilities, outline of facilities, education certificate, etc., and the public official in charge who receives the report shall confirm the certified copy of the building register of the place of business. Upon receipt of the report, the head of the Gu, etc. shall immediately issue the business report certificate, and if necessary to check the facilities and equipment of the place of business, it shall be verified within 15 days after the issuance of the

(1) The purpose of this Act is to contribute to improving the health of the people by providing for matters concerning sanitary control of business and facilities used by the public (Article 1 of the Act); (2) Article 4 (1) and (7) of the Act provides for the sanitary control obligations of public health business operators; and accordingly, Article 7 of the Enforcement Rule provides for the matters to be observed by the Ordinance of the Ministry of Health and Welfare at least once a month for sanitary control standards, etc. of accommodation business operators; (3) Article 7 of the Act provides for an order to install sanitary control facilities, such as accommodation facilities, guest rooms, non-facilities, corridors, stairs, etc. which are not provided by the Enforcement Rule of the Act or the order to suspend the sanitary control of accommodation facilities to the extent that such facilities are not provided by the Ordinance of the Ministry of Health and Welfare; and (4) the Act provides for an order to install sanitary control facilities or to suspend the sanitary control facilities of public health business operators to the extent that such facilities are not provided by the Ordinance of the Ministry of Health and Welfare; and (4) a person who fails to comply with the Act or order to install new sanitary control facilities, etc.

In particular, in the case of this case, under the circumstance that the intervenor is running a accommodation business with the 4th and the 5th to 30th and the 383 guest rooms using the 5th and the 30th and the 30th and the 5th and the 30th and the 30th and the 30th and the 5th and the 30th and the 30th and the 5th and the 30th, the plaintiff's establishment of the 28 guest rooms using the 28 guest rooms complexly distributed among the 5th and the 29th and the 29th and the 29th and the 20th and the 20th and the 20th and the 20th and the 20th and the 20th and the 20th and the 20th and the 20th and the 20th and the 20th and the 20th and the 20th and the 20th and the 20th and the 3th

As to this, Articles 4 and 11 of the Act stipulate the business obligation to be observed by a public health business operator who has completed the business report, which does not stipulate the business facilities and equipment, and therefore, the Plaintiff asserts that even if there is a violation of the obligation to observe after receiving the Plaintiff’s report on the accommodation business, it may not be reviewed when determining whether to accept such a violation, and return the report.

However, an administrative agency that can decide whether to accept a report on accommodation business and impose sanctions against the violation of the obligations of accommodation business operators, which is not equivalent to that of accommodation business operators, but also a violation of the obligations of accommodation business operators (e.g., the provision that the accommodation business operator must post the accommodation fee table on the hotel, for example, the entertainment business operator), when the report on accommodation business is accepted, can return the report on accommodation business itself as necessary for the significant public interest that prevents the waste of administrative power and enhances the convenience of the people. Thus, the Plaintiff’s above assertion is rejected.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and since the judgment of the court of first instance is unfair with different conclusions, the appeal by the defendant et al. is accepted, and the judgment of the court of first instance is revoked and the plaintiff's claim is dismissed as per Disposition.

Do-type (Presiding Judge)

Maternho

Gangwon-domen' accommodation

Related Acts and subordinate statutes

◆ 공중위생관리법

Article 1 (Purpose)

The purpose of this Act is to contribute to the improvement of national health by providing for matters concerning the sanitary control, etc. of business and facilities used by the public.

Article 2 (Definitions)

(1) The definitions of terms used in this Act shall be as follows:

1. The term "public health business" means the business of providing sanitary management services to many persons, which is the lodging business, bath business, barber business, beauty and beauty service business, laundry and hygiene management service business;

2. The term “ lodging business” means the business of rendering such services as facilities and equipment, so as to make customers able to sleep and stay: Provided, That the case as prescribed by the Presidential Decree shall be excluded, such as private houses taking lodgings, which are located in agricultural and fishery villages;

Article 3 (Reporting on Commencement and Discontinuation of Public Health Business)

(1) A person who intends to run a public health business shall have facilities and equipment prescribed by Ordinance of the Ministry of Health and Welfare for each type of the public health business and report it to the head of a Si/Gun/Gu (limited to the head of an autonomous Gu; hereinafter the same shall apply). The same shall apply

(3) Necessary matters concerning methods and procedures for reporting under paragraphs (1) and (2) shall be prescribed by the Ordinance of the Ministry of Health and Welfare.

Article 4 (Health Control Obligations of Public Health Business Operators)

(1) A public health business operator shall manage his/her business-related facilities and equipment in a sanitary and safe manner so as not to cause any harm to their users' health.

(7) Matters necessary for the provision of sanitary control standards and other sanitary control guidelines to be observed by a public health business operator under paragraphs (1) through (6), other than those prescribed in each of such paragraphs, and matters other than those prescribed in each of such paragraphs, and the scope of persons to be placed within a public bath, and matters to be observed by such business operator shall be determined by the Ordinance of the Ministry of Health and Welfare.

Article 11 (Closure, etc. of Public Health Business Establishment)

(1) When a public health business operator violates this Act or any order issued under this Act, or the Act on the Punishment of Acts, Including Sexual Traffic Mediation, Etc., the Act on the Regulation of Amusement Businesses Affecting Public Morals, the Juvenile Protection Act, or the Medical Service Act, or the head of a relevant administrative agency makes a request, the head of a Si/Gun/Gu may order him/her to suspend his/her business or to suspend the use of daily facilities, fixing a period not exceeding six months, or to close his/her place of business: Provided, That in cases of tourist accommodation

(2) Detailed criteria for the suspension of business, the suspension of use of some facilities, and the closure order of business offices shall be prescribed by Ordinance of the Ministry of Health and Welfare.

Article 17 (Sanitary Education)

(1) A public health business entity shall undergo sanitation education each year.

(2) Any person who intends to make a report under the former part of Article 3 (1) shall undergo sanitation education in advance: Provided, That where he/she is unable to undergo such education in advance due to poor reasons, he/she may undergo sanitation education within the period determined by Ordinance of the Ministry of Health and Welfare after commencing his/her business.

Article 22 (Administrative Fines)

(1) Any person who falls under any of the following subparagraphs shall be punished by a fine for negligence not exceeding three million won:

2-. A person who has failed to manage the sanitary and safe facilities and equipment of his lodging establishment in contravention of the provisions of Article 4 (7);

◆ 구 공중위생관리법 시행규칙(2011. 2. 10. 보건복지부령 제43호로 개정되기 전의 것 )

Article 2 (Standards for Facilities and Equipment)

The standards for facilities and establishment of each type of public health business under Article 3 (1) of the Public Health Control Act (hereinafter referred to as the "Act") shall be as shown in the attached Table 1.

[Attachment 1]* No fixed for accommodation business

Article 3 (Reporting on Public Health Business)

(1) A person who intends to report a public health business under Article 3 (1) of the Act shall submit a report (including a report in electronic form) in attached Form 1 to the head of a Si/Gun/Gu (referring to an autonomous Gu; hereinafter the same shall apply) accompanied by the following documents after having facilities meeting the standards for establishment and equipment at the time of each type of a public health business under Article 2:

1. Outline of business facilities and equipment;

2. A certificate of completion of education (limited to cases where he/she has received prior education pursuant to Article 17 (2) of the Act).

3. Original copy of a license (limited to barber business and beauty art business).

(2) A public official in charge who receives a report under paragraph (1) shall verify the certified copy of building register of a place of business through the public use of administrative information under Article 21 (1) of the Electronic Government Act.

(3) The head of a Si/Gun/Gu in receipt of a report under paragraph (1) shall immediately issue a business report certificate in attached Form 2, and prepare and manage a report management ledger in attached Form 3 of each branch (including electronic documents).

(4) The head of a Si/Gun/Gu in receipt of a report under paragraph (1) shall, if necessary, verify the facilities and equipment of the relevant place of business within 15 days after issuance of the business report.

Article 7 (Sanitary Control Standards, etc. to be Observed by Public Health Business Operators)

The standards, etc. for the above life management to be observed by the public health business operators to maintain their sound business order under Article 4 (7) of the Act shall be as shown in the attached Table 4.

[Attachment 4] Sanitary Control Standards, etc. to be observed by a public health business entity (related to Article 7)

1. Lodging businessmen:

(a) Cleanliness, such as guest rooms and bedclothes;

(1) Disinfection shall be carried out at least once a month at the guest room facilities, corridors, stairs, bathing rooms, shower facilities, screen facilities, toilets, etc. to ensure that no pests occur. The proviso does not exceed the proviso.

(b) Sanitary control of bathing rooms, etc.;

(c) A ventilation and lighting;

(3) The lighting intensity of guest rooms and service facilities shall be maintained to be more than 75 Luxembourg (Lux), and the lighting intensity of corridors, stairs, bathing rooms, shower facilities and toilets shall be maintained to be more than 20 Luxembourg (10 Luxembourg in the case of corridors and stairs).

(d) Other matters to be observed;

Lodging business operators shall post a certificate of report on accommodation business and a ticket of accommodation fee in the guest room respectively within the business place.

Article 19 (Criteria for Administrative Disposition)

The criteria for administrative dispositions referred to in Articles 7 (2) and 11 (2) of the Act shall be as shown in the attached Table 7.

[Attachment 7] Criteria for Administrative Disposition (Related to Article 19)

Ⅱ Individual Standards

1. Lodging business:

A person shall be appointed.

(c) The head of a business suspension business under Article 3 (1) of the Act or business suspension of a place of business without filing a report;

November 15th order to improve the name and trade name or the area of business;

When not less than 1/3 of the Act is modified;

(c) The head of a business under Article 3 (1) of the Act, without filing a report;

Order of closure when location is changed;

(d) The head of a business suspension order under Article 3-2 (1) of the Act for one month after succeeding to the status of a business operator;

order of closure in January of 10th 10 days when no report is filed;

(e) Article 4 (7) of the Act to be observed by a public health business operator;

violation of sanitary control standards, etc.

(1) Sclobing business suspension period, such as guest rooms and bedclothess, of light business suspension;

Order of closure 10 days per five days, such as bathing rooms, etc. or not maintained;

failure to comply with the sanitation management of the Corporation;

at the time of

(2) If the ventilation or lighting is not good, the place of business suspension of the improvement order is suspended.

5 10-day closure order

(3) The place of business where the accommodation business was reported or the business was suspended.

Order for the improvement of 10 days to the entertainment room or the entertainment room;

Lodging fare table shall not be posted.

at the time of

(4) omitted

(f) through (h) omitted;

2. Article 11 (1) of the Act on the Punishment of Acts of Arranging Sexual Traffic;

The Act on the Regulation of Amusement Businesses Affecting Public Morals,

Act, the Juvenile Protection Act, and Definition;

relevant administrative agency in violation of the Attorney Fees Act

at the request of the head of the Chapter

(a) The head of a business suspension of obscene documents, books, or business in the business place;

The order for closure of February 3, 200 for chemical, sound records, video products and other articles;

(hereinafter referred to as "obscenity")

Distribution, sale, lending, or causing another person to do so;

(2) conduct and conduct of any obscene material;

Acts of viewing and allowing perusal, and distribution and distribution thereof;

The purpose of sale, lease, and viewing.

To display or keep obscene materials;

A person shall be appointed.

◆ 구 공중위생법(1999. 2. 8. 법률 제5839호 공중위생관리법 부칙 제2조로 폐지되기 전의 것 ) 제2조(정의)

(1) The definitions of terms used in this Act shall be as follows:

1. the term “sanitary entertainment business” means the following businesses:

(a) Lodging business: a business which provides facilities and equipment necessary for lodging and provides guests with lodging services;

Article 3 (Standards for Facilities, etc.)

(1) Any person who conducts sanitary entertainment business and sanitary-related business shall be equipped with facilities and equipment prescribed by Ordinance of the Ministry of Health and Welfare for each type of business, and maintain and manage them.

◆ 구 공중위생법 시행규칙(2000. 3. 16. 보건복지부령 147호 공중위생관리법 시행규칙 부칙 제2조로 폐지되기 전의 것 )

Article 2 (Standards for Facilities)

The standards for the facilities and the installation of sanitary entertainment business and sanitation-related business under the provisions of Article 3 (1) of the Public Health Act (hereinafter referred to as the “Act”) shall be as shown in the attached Table 1.

[Attachment 1] Standards for Facilities and Equipment for Sanitary Entertainment Business and Sanitary Related Business (Related to Article 2)

1. Lodging business:

(a) Hotel business;

Standard rooms for facilities and equipment (1) shall be at least 30 rooms.

A person shall be appointed.

(c) Inn and inn and inn and inn;

[Attachment]

A person shall be appointed.

(d) Inn business;

A person shall be appointed.