2014Guhap2657 (Revocation of Disposition of Non-permission for Development Activities)

Amphama Co., Ltd.

Busan District Office of Education Education

April 2, 2015

April 23, 2015

1. The plaintiff's claim is dismissed.

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

The defendant's rejection disposition against the plaintiff on June 10, 201 against the plaintiff is revoked.

1. Details of the disposition;

A. The Plaintiff filed an application with the Defendant for prohibited acts and cancellation of facilities within school environmental sanitation and cleanup zone (hereinafter “ Cleanup Zone”) pursuant to the proviso of Article 6(1) of the School Health Act, in order to newly construct and operate the 15th floor, total floor area, 24,618.17 meters of guest rooms, and 325 hotel rooms (hereinafter “the hotel of this case”) on the 1393m of Busan Shipping Daegu Yan-dong 1393, Busan (hereinafter “instant business site”).

B. On June 10, 2014, the Defendant filed an administrative appeal seeking the revocation of the instant disposition with the Busan Metropolitan Office of Education Administrative Appeals Commissions (Administrative Appeals Commissions) on July 8, 2014, to the effect that the Plaintiff would not accept the Plaintiff’s application for prohibited acts and cancellation of facilities on the grounds that the school environmental sanitation cleanup committee’s deliberation under the proviso of Article 6(1) of the School Health Act had an adverse impact on learning and school health sanitation (hereinafter “instant disposition”). The Plaintiff filed an administrative appeal seeking revocation of the instant disposition with the Busan Metropolitan City Office of Education Administrative Appeals (Administrative Appeals Commissions) on the grounds that the said administrative appeals commission dismissed the Plaintiff’s claim.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, 5, 7, Eul evidence No. 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 assertion

Considering the following circumstances, the instant disposition is an error of law that excessively imposes excessive disadvantage on the Plaintiff compared to the public interest to be achieved thereby, and thus deviates from and abused discretion.

① Since the completion of 1986, the yacht Stak Stak Stak Stak Stak Stak Stak Stak Stak Stak Stak Stak Stak Stak Stak Stakak is very underdeveloped due to the lack of convenience facilities and capacity, and therefore, it is being compensated for the amount of taxes of Busan Metropolitan City due to the lack of convenience facilities and capacity. The defendant has promoted the business with Busan Metropolitan City as well as the business with only the right to manage and operate facilities for 30 years, instead of contributing all the facilities to be newly constructed under the plan to substantially reute the yacht Stak Stak Stak Stak Stak Stak Stak Stak Stak Stak Stak Stak Stak Stak Stak Stakak Stak St.

However, according to the instant business plan, the Defendant’s main revenue source is revenue from the operation of facilities such as hotels, shopping districts, marina facilities, etc., and the business plan was commenced on the premise of the new establishment of a hotel with approximately 40.4% of the total revenue. If the new establishment of a hotel is impossible, the instant business itself becomes nonexistent, and thus, the Plaintiff suffers enormous loss that is difficult to accept.

In particular, the hotel of this case is also necessary to provide convenience to users of domestic and foreign yachts held in the yacht stadium. When the project of this case is completed, the project site of this case is constructed as a complex including hotels, exhibitions, ocean parks, and service convenience facilities and has contributed significantly to the commercialization of tourism products and job creation as Busan Grandmark aiming at marine water supply, and as a result, it will return to the interests of local residents, and thus, it is different from the construction of other hotels concentrated on the pursuit of private interest.

Since the hotel site of this case is considerably far away from the boundary line of the Maritime Elementary School, 71m in straight line, etc., the hotel site of this case is rarely visible from the Maritime Elementary School, and in particular, the hotel outer wall of this case, which appears in the direction of the Maritime Elementary School, is designed to be closed with light-weight walls that cannot be inside, so the guest room of the Maritime Elementary School is not visible at source.

In addition, the hotel of this case is a special class 1 hotel for a guest with a swimming only, and there is no possibility that the hotel of this case is able to be able to be able to be able to find out without any snow plan for juvenile harmful facilities, such as entertainment tavern, gambling house, and other gambling facilities, and since the ownership of the hotel of this case belongs to Busan Metropolitan City, the defendant cannot change its business plan or operating method at his own discretion.

Therefore, in light of the level, size, etc. of the hotel facilities of this case, the hotel of this case is highly likely to cause harmful acts to juveniles, so it is unlikely that students' study and school health and sanitation may not be adversely affected.

③ Since the hotel of this case is not a large number of guest rooms on the 15th floor above the 325th floor above the ground, there is no possibility that there is no possibility that there will be any factors detrimental to learning, such as the increase of the floating population or the occurrence of noise in the surrounding area even if it is newly constructed.

In particular, it is not located in the main course of the students of the Maritime School, and only about 100 students living in the nearby Maritime Department X-DD. (a considerable of about 10% of the fixed number of the Maritime Elementary School) attend the entrance of the hotel of this case after passing through the front of the hotel of this case. In that it is necessary to take measures such as the installation of a senior crosswalk, regular placement of safety personnel, and change of pedestrian signal cycle for securing the safety of the above students, there is no problem at all in the attending school of the Maritime School cited by the Defendant on the ground of the disposition of this case.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) The yacht stadium located in the instant business site, which is a general commercial area, has been constructed and used until now in 1986 at the time of the APP games. The surrounding areas include Busan Motion Pictures, X-do apartment on the left-hand side of the central yacht course, and there is treatment-dong trim apartment, tidal river, Gyeongnama apartment, and Gyeongnama apartment, and there is a 6-lane distance from the front side of the central yacht course of the yacht course, and there are trees such as pine trees, etc. on the side of the outer side of the YPP.

2) There is a 6nd line road between the scheduled site for the establishment of the hotel in this case and the niversary elementary school. The distance from the hotel parking lot to the boundary of the niversary elementary school is 71m. The planned site for the establishment of the hotel is 7m up to the boundary of the niversary elementary school, 96m up to the school fixed, and 158m up to the school teachers. Although there are trees, there are trees, etc. on the outside side of the road and the yacht stadium, in light of the scheduled site for the establishment of the hotel in this case, there is no total blocking of the view of the above trees, etc., and in particular, considering the fact that the hotel in this case will be constructed with the height of 15 stories, considerable parts of the hotel building seems to start at the night.

3) In order to lead a comfortable and safe school life, the head of the Gangseo Elementary School stated that the student’s educational and mental damage incurred as a result of the student’s construction in a school located outside the absolute Cleanup Zone cannot be compensated for what is, and thus, the construction of a tourist hotel was 98.36% (i.e., 900 persons/915 persons, 915 persons from among the registered 998 persons, 915 persons from among the registered 998 persons, 900 persons, 15 persons from among the registered 998 persons, 15 persons) agreed to the redevelopment of the yacht stadium, but there was an opinion that it is against the hotel building on the grounds of noise, environmental issues, adverse influence on the children’s emotional and class environment, possibility of causing the overall shipping traffic problems.

[Reasons for Recognition] Uncontentious Facts, Gap evidence Nos. 4, Eul evidence Nos. 2, 3, 5, 6, and 8, each entry, and the purport of the whole pleadings as a result of the on-site verification by this Court

D. Determination

1) Under the proviso of Article 6 (1) of the School Health Act, a person delegated by the Superintendent of an Office of Education or the Superintendent of an Office of Education to determine whether an application for the cancellation of prohibited acts and facilities in school environmental sanitation and cleanup zones has no adverse effects on learning and school health, and the prohibited acts and facilities are belonging to the discretionary acts of the person delegated by the Superintendent of an Office of Education or the Superintendent of an Office of Education to cancel or continuously prohibit such acts and facilities. In order to ensure that such acts and facilities are illegal due to deviation from and abuse of discretionary power, the circumstances such as the types and scale of the acts and facilities, the distance and location of the school, the kinds and number of students, the environment surrounding the school, and the surrounding acts and facilities together with other acts and facilities in and around the school, and the disadvantage of the other party, including the infringement of property rights and facilities, should be determined carefully and carefully. In the process, it is desirable that the principal of the school and the educational authority respect to the maximum extent possible under the relevant Acts and subordinate statutes such as the School Health Act (see, e.g., Supreme Court Decision 9541).

2) In light of the above legal principles, the following circumstances acknowledged by the above facts and the evidence revealed earlier are considered, even if all of the circumstances alleged by the Plaintiff were considered, the Defendant’s disposition of this case is justifiable to protect students’ learning and school health and sanitation to be guaranteed at least in the law, and it cannot be deemed that the Defendant abused discretion.

① It is clear that the surrounding environment of a school has a significant impact on students’ study and environmental health and sanitation, and in particular, it is more true for juveniles who have shown a unique scopic personality, and who have shown a weak history and scopic character. Therefore, it is desirable to prevent students from entering as much as possible any act or facility that is likely to harm learning or school health and sanitation in the vicinity of a school. Accordingly, the School Health Act was enacted in this purport. Article 6(1) of the School Health Act (hereinafter “School Health Act”) lists prohibited prohibited acts and facilities in the Cleanup Zone and prohibits them in principle, but only if it is deemed that some of them do not adversely affect the study and school health and sanitation through deliberation by the School Environmental Sanitation and Cleanup Committee. In light of the provisions of the School Health Act, the judgment of an educational authority on prohibited acts and the cancellation of facilities shall be respected to the maximum extent there are no special circumstances.

③ It is difficult to say that accommodation business, such as hotels, inn, and inn, does not in itself interfere with the school education of students. However, as can be inferred from the content of the Act on the Regulation of Amusement Businesses Affecting Public Morals, there are frequent cases where prostitution, obscenity, or speculative acts, etc. in a lodging establishment. As such, in the Cleanup Zone, students in a given facility may have a view to such act, and even if there is a high probability of omission in flight by accessing such unsound act, the School Health Act regulates hotel, inn, etc. as prohibited facilities in the Cleanup Zone.

As asserted by the Plaintiff, the frequency of the occurrence of unsound acts, such as prostitution, obscene acts, speculative acts, and the inhalement of harmful school materials, etc., in the special class 1 hotel is anticipated to be lower than that of the general lodging establishment. Moreover, the possibility that students in neighboring schools come into contact with unsound acts through the hotel of this case is lower than that of the general lodging establishment.

However, it is clear that the hotel in this case is also a hotel, and even if the hotel in this case belongs to Busan Metropolitan City and the present hotel is not likely to be modified, it is not likely that the hotel in this case is a private business entity, and there is no possibility that the hotel in this case may significantly decline depending on the economic situation, etc., and in particular, the hotel in this case can not be ruled out as being able to completely revise the overall business plan through consultation with the Busan Metropolitan City when the hotel in this case drops, etc. In addition, the hotel in this case is difficult to provide an environment where the above acts may occur as well as the general hotel in this case through changes in the method of management and operation. Accordingly, it cannot be concluded that there is no possibility that the hotel in this case may cause serious harm to students' learning and health in the future, as argued by the Plaintiff, including the scale, grade, incidental facilities, etc. of the hotel in this case, and most of the hotel in this case can not be concluded as a 7m hotel in this case’s building and its inner wall in this case.

In addition, for approximately 10 students residing in neighboring X-D apartment (a approximately 10% of the prescribed number of students in the maritime elementary school) who attend the school through the instant project site or next thereto, there is no way for the plaintiff to resolve the damage caused by the cryptive action against them.

⑤ The construction of the hotel in this case is anticipated to significantly increase the traffic volume due to the construction of the hotel in this case, and it is difficult to readily conclude that there is no problem in the safety of students attending school solely on the ground that the Plaintiff prepared measures, such as the installation of a senior crosswalk, the regular placement of safety personnel, and the change in the pedestrian signal cycle to ensure the safety of students attending school.

(6) In light of the demand of the hotel users, etc., or the ratio of the revenue of the hotel in the instant business, the Plaintiff asserts that the establishment of the hotel is inevitable in promoting the instant business, and that there are no other places except the scheduled site for the establishment of the hotel as the location of the hotel in the instant business site when examining various factors, such as the building and location around the instant business site. However, the choice of the hotel establishment and the planned site for the establishment of the hotel in the instant business plan seems to have been planned solely to secure the Plaintiff’s profitability, but it cannot be concluded that the other alternative is completely impossible, such as the change of the planned site for the establishment of the hotel.

7) Unlike the construction of other domestic hotel, even if the public interest nature as alleged by the Plaintiff is somewhat somewhat different from the construction of the instant business, considering the fact that considering the fact that the legislative intent of the School Health Act is to protect the juvenile students who are relatively weak in the form of variable and intention by setting the minimum scope of the area surrounding the school, which is its main activity space, and by preventing harmful environment and preparing a peaceful and healthy environment within the scope of the said minimum scope, it is difficult to view the Defendant’s judgment that led to the instant disposition is remarkably unreasonable.

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge, Kim Hong-il

Judges Lee Hong-hoon

Judges Kim Gi-sung