Plaintiff 1 and 19 others (Law Firm Jins, Attorneys Cho Young-young et al., Counsel for the plaintiff-appellant)

The District Education Office of Daejeon Metropolitan City and the District Education Office and six others (Attorney Kim Jong-deok, Counsel for the plaintiff-appellant)

May 30, 2013

Daejeon District Court Decision 2012Guhap4250 Decided February 6, 2013

1. All appeals by the Defendants are dismissed.

2. The costs of appeal are assessed against the Defendants.

1. Purport of claim

A. On each date indicated in the attached list 1, the disposition of refusal of a private teaching institute rendered by the head of the Dong Office of Education in Daejeon Metropolitan City to Plaintiffs 1, 2, 3, 4, and 5, the disposition of refusal of a private teaching institute made by the head of the Seo-gu Office of Education in Daejeon Metropolitan City to Plaintiffs 6, 7, 8, and 9, the disposition of refusal of a private teaching institute made by the head of the Seo-gu Office of Education in Daejeon Metropolitan City to Plaintiffs 7, 8, and 9, the disposition of refusal of a private teaching institute made by the head of the Office of Education in Chungcheongnam-do to Plaintiff 10, and the disposition of refusal

B. On each day indicated in the attached list 2, ① the head of the Dong-gu Daejeon Metropolitan City issued a corrective order to reinstate a building in violation to Plaintiffs 12 and 13; ② the head of Seo-gu Daejeon Metropolitan City issued a corrective order to correct the building in violation to Plaintiffs 14, 15, 16, and 17; ③ the head of Seo-gu Daejeon Metropolitan City issued a corrective order to correct the building in violation to Plaintiffs 18, 19, and 20, respectively.

2. Purport of appeal

(a) The head of the Dong Office of Education in Daejeon Metropolitan City;

The part concerning the above defendant in the judgment of the court of first instance is revoked. All of the claims of plaintiffs 1, 2, 3, 4, and 5 are dismissed.

(b) The head of the District Education Office of Defendant Daejeon Metropolitan City;

The part concerning the above defendant in the judgment of the court of first instance is revoked. All claims of plaintiffs 6, 7, 8, and 9 are dismissed.

(c) The head of the office of education of the defendant Chungcheongnam-do Office of Education;

The part concerning the above defendant in the judgment of the first instance shall be revoked. The plaintiff 10's claim shall be dismissed.

(d) The head of the Office of Education in Chungcheongnam-do, Chungcheongnam-do;

The part concerning the above defendant in the judgment of the first instance shall be revoked. The plaintiff 11's claim shall be dismissed.

(e) The head of Dong-gu Daejeon Metropolitan City;

The part concerning the above defendant in the judgment of the court of first instance shall be revoked. All claims of plaintiffs 12 and 13 shall be dismissed.

(f) The head of Seo-gu Daejeon Metropolitan City;

The part concerning the above defendant in the judgment of the court of first instance is revoked. All claims of plaintiffs 14, 15, 16, and 17 are dismissed.

(g) The head of Jung-gu Daejeon Metropolitan City;

The part concerning the above defendant in the judgment of the court of first instance is revoked. All claims of plaintiffs 18, 19, and 20 are dismissed.

1. Quotation of judgment of the first instance;

The reasoning for this Court’s explanation concerning this case is as follows: (a) the entry of the following clause is added between the first instance court’s first instance judgment Nos. 9, 18 and 19; (b) the entry of the following clause is added between the first instance court’s first instance judgment No. 12, 16, and 17; and (c) the modification of the “attached Acts and subordinate statutes” to the “attached 3-related Acts and subordinate statutes” is the same as the entry of the grounds for the first instance judgment; and (d) thus, it shall be cited as it is in accordance

「9) 2011. 10. 25. 대통령령 제23250호로 개정된 현행 학원설립법 시행령 제3조의3 제1항 [별표 2]는 평생직업교육학원 기예분야의 교습과정 중 기존의 ‘전통무용, 현대무용’을 ‘무용(전통무용, 현대무용 등)’과 ‘댄스(체육시설법에 따른 무도학원업 제외)’로 규정하고 있고, 체육시설법 제10조 제1항 제2호 , 체육시설법 시행령 제6조 [별표 2] 제7호는 신고 체육시설업인 ‘무도학원업’을 수강료를 받고 국제표준무도(볼룸댄스) 과정을 교습하는 업이라고 규정하면서 체육시설법상의 ‘무도학원업’의 범위에서 ‘학원설립법에 따른 학원’을 제외한다고 규정하고 있으므로 체육시설법도 학원설립법에 의한 국제표준무도(볼룸댄스)학원의 설립·운영이 가능함을 전제로 하고 있다고 볼 수 있다.

In addition, the purpose of the Sports Facilities Act is to contribute to the promotion of national health and good use of leisure time by encouraging the installation and use of sports facilities, which are continuously used for sports activities, and ancillary facilities, and by promoting the sound development of sports facilities business, and the Act on the Establishment of Private Institutes aims to prescribe matters concerning the establishment and operation of private teaching institutes, which are facilities provided as learning places, by a private person to learn knowledge, technology, or arts, or by providing for matters concerning the establishment and operation of private teaching institutes.

이와 같이 체육시설법 시행령 제6조 [별표 2] 제7호의 규정 형식, 체육시설법과 학원설립법의 목적과 규율대상이 다른 점, ‘댄스’라는 신체활동 분야의 경우 댄스의 종류에 의하여 체육시설법과 학원설립법의 규율 대상이 완전히 분리되었다고 보기 어려운 점 등에 의하면, 학원설립법에 의한 학원의 요건을 구비하고 국제표준무도(볼룸댄스) 과정을 교습하는 자에 대하여는 학원설립법을 적용하는 것이 타당하며, 정당한 사유 없이 일률적으로 체육시설법에 의한 무도학원업으로 규율할 수는 없다고 할 것이다.」

7) Article 3-4 [Attachment 1] paragraph (4) (i) of the Enforcement Decree of the Building Act provides that “private teaching institutes with a total floor area of less than 500 square meters used for the same building shall be excluded” as one of Class II neighborhood living facilities. Article 3-4 (1) (i) of the Enforcement Decree of the Building Act provides that “a dance institute shall be excluded” and “a dance institute” shall be “a entertainment facility” under attached Table 1 [Attachment 1].

Meanwhile, Article 2 Subparag. 6 of the Act on the Regulation of Amusement Businesses Affecting Public Morals for the purpose of preserving public morals and protecting juveniles from harmful environment by regulating acts, etc. harmful to the sound growth of juveniles at a place where amusement businesses affecting public morals are conducted. Article 2 of the same Act provides for “the scope of amusement businesses” as “game providing business” under Article 2 Subparag. 6 of the Game Industry Promotion Act and “combined distribution and game providing business” under Article 2 Subparag. 8 of the same Act, “video watching room business”, “sing room business”, “sing room business”, “public bath business”, “public bath business”, “sing bar business”, “sing tavern business”, and “a dance institute business and dance hall business” under Article 10(1)2 of the Sports Facilities Act, and Article 2 Subparag. 5 of the Juvenile Protection Act provides for “a dance institute business, dance hall business” under the Sports Facilities Act as an establishment harmful to juveniles. Article 6 of the Enforcement Decree of the School Health Act provides that “a dance institute business” is prohibited under the School Act.

In addition to the above relevant provisions, the Building Act recognizes the use of the “place of amusement business” as part of the buildings falling under Class I or II neighborhood living facilities under the Enforcement Decree of the Building Act [Attachment Table 1](3)(c), Article 2(4)(e) of the Act on Promotion of Game Industry by strictly interpreting the concept of “use facility, public bath”, “facilities of combined distribution and game providing business” under Article 2 subparag. 8 of the Act on Promotion of Game Industry”, “facilities of a public entertainment business” under Article 2(8)(j) of the Act on Promotion of Game Industry,” and “a public entertainment place and singing practice room” under other items (l) of the Enforcement Decree of the Building Act, even if the building falls under the “place of amusement business” under the Act on the Regulation of Amusement Businesses Affecting Public Morals Public Morals Public Morals Public Morals Public Morals Public Morals Public Morals Public Morals Public Morals Public Morals Public Morals Public Morals Public Sanitation Public Sanitation Public Sanitation Public Sanitation Publically construed as “a dance institute, dance hall falling under the category of amusement facilities under Article 16(e) of the Building Act.

In light of the fact that the Enforcement Decree of the Building Act [Attachment 1] provides for the types of buildings by use and takes the method of indicating only the names of each building without providing the basis law for each building, and that the basic concept of “a dance hall, dance institute,” and the basic concept of “a dance hall,” is stipulated in the Sports Facilities Act, it is reasonable to view that even if a “a dance hall,” is simply “a dance hall,” the amusement facility prescribed in attached Table 1 [Attachment 1](16)(e) of the Enforcement Decree of the Building Act as meaning “a dance hall, dance institute”

2. Conclusion

Therefore, the plaintiffs' claims shall be accepted in its entirety on the grounds of its reasoning, and the judgment of the court of first instance is just, and the appeal by the defendants is dismissed in its entirety on the grounds of its merit. It is so decided as per Disposition.

[Attachment Omission]

Judges Lee Jin-hun (Presiding Judge)