(영문) 춘천지방법원 2018.1.30. 선고 2017구합433 판결

The defendant's disposition of business suspension of 15 days against the plaintiff on March 10, 2017 is revoked (the plaintiff's purport of the claim is the same).

Reasons

1. Details of the disposition;

A. The Plaintiff is a person who operates a restaurant (title) in the name of "C" in Chuncheon City B and 102.

B. On March 10, 2017, the Defendant issued a disposition of business suspension under Article 75 of the Food Sanitation Act and Article 89 [Attachment Table 23] of the Enforcement Rule of the Food Sanitation Act on the ground that the Plaintiff’s son violated Article 44 of the Food Sanitation Act by selling alcoholic beverages to three juveniles at the above restaurant around October 23, 2016, and around 00:02.

C. The Plaintiff filed an administrative appeal with the Gangwon-do Administrative Appeals Commission, and the Gangwon-do Administrative Appeals Commission made an adjudication to change the period of business suspension from 15 days to 15 days (from August 14, 2017 to August 28, 2017) on July 31, 2017 (hereinafter “instant disposition”). The Defendant changed the period of business suspension from 15 days to 15 days (from August 14, 2017 to August 28, 2017, the period of business suspension changed to 15 days).

D. On November 28, 2016, D was subject to a non-prosecution disposition (Suspension of Prosecution) with respect to the charge of selling alcoholic beverages to juveniles.

[Grounds for Recognition: Facts without dispute, Gap evidence 1, 2, 3, Eul evidence 1 through 6, the purport of the whole pleadings]

2. Whether the disposition of this case is legitimate;

A. The plaintiff's assertion

① The Plaintiff’s employee, who had been on the part of the Plaintiff’s restaurant, was absent from office, confirmed that the Plaintiff’s employee was in charge of ice ice ice work instead of D; ② one of three customers, who had first been on the D, was not a minor; and the first three of the three adults was adults, and later, the Plaintiff provided alcoholic beverages on the ground that he was an adult, and thus there was no intention. ③ This case led minors to the instant disposition by the method of receiving alcoholic beverages through the restaurant operated by the Plaintiff on the part of the Plaintiff; ③ the Plaintiff was the victim rather than the Plaintiff, ④ the Plaintiff was in charge of illegal acts while running the restaurant, and there was no fact that the Plaintiff had committed a tort. In light of the above, the instant disposition was excessive, and thus, there was an error of deviation and abuse of discretion.

(b) Indication of relevant regulations;

It is as shown in the attached Form.

C. Determination

1) Whether a punitive administrative disposition deviates from or abused the scope of discretion under the social norms shall be determined by comparing and balancing the degree of infringement on the public interest and the disadvantages suffered by an individual by objectively examining the content of the violation as the grounds for the disposition, the public interest to be achieved by the relevant disposition, and all the relevant circumstances. In such a case, although the criteria for the punitive administrative disposition are not externally binding on the people or the court, it shall not be deemed that the said disposition does not in itself conform with the Constitution or laws, or that the punitive administrative disposition in accordance with the above disposition criteria does not conform with the relevant laws and regulations, and unless there are reasonable grounds to believe that it is remarkably unreasonable in light of the content of the violation as the grounds for the disposition, and the content and purport of the relevant laws and regulations, it shall not be determined that the disposition was an abuse of discretion (see, e.g., Supreme Court Decision 2007Du694

2) Comprehensively taking into account the aforementioned evidence and the overall purport of oral argument, the following circumstances are as follows: ① in the situation where the need to nurture and protect juveniles in a sound manner is growing due to the increase in juvenile delinquency and escape day, the enforcement of strict law is required for the violation of juvenile-related laws and regulations by food service business operators; ② in accordance with individual standards under Article 89 [Attachment Table 23] of the Enforcement Rule of the Food Sanitation Act, the act of providing alcoholic beverages to juveniles constitutes two months of business suspension; however, in consideration of the circumstances in which the Defendant was subject to the disposition of suspending prosecution by the prosecutor, the period of business suspension under Article 15(f) of the above [Attachment Table 23] was reduced from two months to one month. According to the Gangwon-do Administrative Appeals Commission’s modified ruling, taking into account the circumstances asserted by the Plaintiff, the Defendant again reduced the period of business suspension from one month to 15 days; ③ The Plaintiff’s disposition did not admit the Plaintiff’s intention or negligence as a whole, even if it did not submit objective evidence to support the Plaintiff’s violation of discretionary authority.

3. Conclusion

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