2017Gudan10857 Revocation of business suspension

A

Head of Daegu Metropolitan City Month;

December 22, 2017

January 19, 2018

1. The disposition of business suspension rendered by the Defendant to the Plaintiff on July 17, 2017 is revoked. 2. The litigation costs incurred by the Defendant are borne by the Defendant.

The same shall apply to the order.

1. Details of the disposition;

A. The plaintiff is a person who operates a youth game room business in the name of "C" in Daegu-gu B. (hereinafter "the game room of this case").

B. The Plaintiff established the game machine in which the total use of the game in the instant game room is a game product (hereinafter referred to as “the game machine in this case”) and provided a type of figures (hereinafter referred to as “the instant type”). On July 17, 2017, the Defendant rendered a disposition of suspending the game in this case by providing free gifts exceeding 5,000 won (hereinafter referred to as “the instant type”). On the ground that the Plaintiff, on April 20, 2017, in the instant game room, provided free gifts exceeding 5,00 won in violation of the matters to be observed by game business entities related to the game products (standards for the provision of free gifts) stipulated in Article 16-2 subparag. 2 of the Enforcement Decree of the Game Industry Promotion Act (hereinafter referred to as the “Game Industry Promotion Act”).

[Ground of recognition] Facts without dispute, Gap evidence 1, 4, Eul evidence 1, 2, and 7 (including each number; hereinafter the same shall apply)

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) Violation of procedures

The Defendant notified the Plaintiff that he/she may submit his/her opinion by July 17, 2017 when giving prior notice of the instant disposition, and the Plaintiff submitted his/her written opinion to the Defendant on July 17, 2017 within the said period. However, upon receiving the Plaintiff’s written opinion, the Defendant immediately issued the instant disposition without properly examining the Plaintiff’s written opinion, and this would have not given the opportunity to present his/her opinion.

2) Non-existence of grounds for disposition

Article 28(3) of the Game Industry Act provides that the provision of free gifts to promote speculation is a passive requirement that provides free gifts of less than 5,000 won, which are not harmful goods to juveniles, through a deliberation system.

However, the type of the instant seal purchased by the Plaintiff at less than 5,00 won per dog, and does not violate the standards for granting free gifts.

In addition, the game of this case is the main factor of the user's ability, and the acquisition and loss of the goods are determined, and it does not encourage speculation.

(iii) the deviation and abuse of discretionary authority;

In light of the fact that the Plaintiff purchased the instant race at a price less than 5,00 won, and the disposition of this case was suspended, the Plaintiff suffered enormous business losses and loss of customers to a competitor business establishment, etc., and other circumstances, such as the fact that the Plaintiff received a large amount of loans in order to open the game of this case, making it difficult to repay the loans and making it difficult for the Plaintiff and his family members to live, the disposition of this case is unlawful as it deviates from and abused discretionary power.

B. Determination

1) First, with respect to the Plaintiff’s assertion of procedural violation, Article 21(1) of the Administrative Procedures Act provides that, in cases where an administrative agency imposes an obligation on the party or imposes a disposition restricting his/her rights and interests, the title of the disposition (Article 21(1)1), the facts causing the disposition and details of the disposition and the legal basis (Article 3) may be submitted, the submission of an opinion thereon, and the method of handling the case without submitting an opinion (Article 4), and the period for submitting an opinion (Article 21(1)

In addition, in Article 27-2 of the Administrative Procedures Act, the administrative agency stipulates that the opinion submitted by the parties is reasonable when the disposition is made.

2) Based on the above provisions, the following facts can be acknowledged in light of the overall purport of the arguments in this case’s health class, evidence Nos. 2 through 4, and evidence Nos. 3, 4, and 9.

A) On June 29, 2017, the Defendant notified the Plaintiff of the prior disposition to the effect that he/she may submit his/her opinion by July 17, 2017, by clarifying the cause of the disposition and legal basis, etc. (b) The Plaintiff purchased premiums of not more than KRW 5,000 to the Defendant’s competent authority on July 17, 2017, which was the last day of the submission deadline for the submission of the above opinion, but the disposition of business suspension is less than KRW 5,00,000, which was 50,000, or KRW 1,000, which was 1,000 and 4, which was a family unit, and that it was difficult to accept the result that it was illegal due to gambling, etc., and that the Defendant’s final written approval of the instant administrative disposition was accompanied by the Defendant’s written approval of the Defendant’s 17,000,000 won: the Defendant’s final written approval of the Defendant’s 17:7, an electronic written approval.

D) After that, around July 17, 2017, the Defendant’s competent authorities printed out the above “written administrative disposition” and issued it to the Plaintiff around that time.

3) According to the above facts, although the defendant given the opportunity to present opinions to the plaintiff at the time of the prior notification of the disposition of this case, prior to the submission of the plaintiff's written opinion, the defendant proposed "written administrative disposition of this case" before the submission of the plaintiff's written opinion. When the plaintiff's written opinion was submitted, the interim approval was given to only one minute, and the final approval was given by the final approval authority three minutes thereafter.

In light of the above circumstances, it is difficult to deem that the Defendant rendered an opportunity to present opinions to the Plaintiff before the instant disposition and examined the reasonableness of the submitted written opinion and made the instant disposition.

The defendant presented a result report (Evidence No. 5) on the prior notification of the disposition, claiming that the disposition of this case was made after reviewing the plaintiff's written opinion. However, in light of the above time of acceptance of the written opinion and the distance between the time of approval of the "written administrative disposition", the purport that the Administrative Procedures Act gives the disposition party an opportunity to present opinions, the fairness, transparency, and reliability of administration, and the legislative purpose of the Administrative Procedures Act that seeks to secure fairness, transparency, and credibility in administration and to protect the rights and interests of the people, it is difficult to view that the defendant reviewed the written opinion and made the disposition of this case. Thus, the defendant's above argument cannot be accepted. Accordingly, the disposition of this case is unlawful as an infinite administrative disposition that did not give the plaintiff an opportunity to present his opinion, and thus, the remaining argument of

3. Conclusion

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

Judges Lao Young-gu