(a) Manufacturing, sale, business suspension, and appeal litigation of foods, etc.;

(b) A benefit to be taken when suspending business on the grounds of violating the Food Sanitation Act;

(c) Instructions of the Ministry of Health and Social Affairs No. 236;

(d) Whether a disposition of business suspension may be revoked where it is illegal because it exceeds an appropriate period of business suspension (negative);

A. As long as the Plaintiff is engaged in the business of manufacturing and selling food, additives, and the instant rocketing site with the permission of item manufacture, the disposition of suspension of business which brings about the right to such purchase and restriction of profits is an act of binding discretion, and is subject to an appeal litigation, if the Plaintiff deviates from the limitation of its discretion, it is unlawful.

B. Even if the cause of business suspension under the Food Sanitation Act occurred, in the case of business suspension, it shall be compared to the disadvantage suffered by an individual due to the public interest and business suspension under the Food Sanitation Act to be achieved by examining the legal purport that the cause of business suspension is the cause of business suspension.

C. No. 236 of the Directives of the Ministry of Health and Welfare cannot be deemed to have the nature of laws and regulations, and the Minister of Health and Welfare, as a superior administrative agency, issued orders to direct and order the exercise of authority with respect to related subordinate agencies and employees, and such regulations are not only an order within the administrative organization, but also an administrative organization’s discretionary power guaranteed under Articles 26(1) and 6(4) of the Food Sanitation Act, or the court is bound by the said directives.

D. The issue of whether the administrative agency's suspension period should be certain is the discretionary authority of the administrative agency. However, it is an illegal administrative disposition only when it constitutes an abuse of discretionary authority by violating the principle of public interest, the principle of equality, or the principle of proportionality. However, the court can order the cancellation of the administrative disposition as an unlawful disposition if it is judged that the disposition of suspension of business is abuse of discretionary authority, and it goes beyond the scope of judicial review if the administrative agency's reasonable suspension period is determined within the scope of the discretionary authority.

(a) Article 26(1) and (d) of the Food Sanitation Act; Article 1 and Article 26(1) of the Administrative Litigation Act; Article 26(1) and (c) of the Food Sanitation Act; Article 26(1) and (d) of the Food Sanitation Act; Article 26(1) of the Food Sanitation Act;

Supreme Court Decision 81Nu375 delivered on June 22, 1982

진주햄쏘세지주식회사

[Defendant-Appellee] Plaintiff 1 and 3 others, Counsel for defendant-appellee

Daegu High Court Decision 81Gu97 delivered on December 1, 1981

The appeal is dismissed.

The costs of appeal shall be borne by the defendant.

The defendant's attorney's grounds of appeal are examined.

1. Ground of appeal No. 1

원고가 식품, 첨가물, 제조품목허가를 받아 이 사건 참맛쏘세지 제조판매영업을 하고 있는 이상, 이러한 기득의 권리, 이익을 제한하는 결과를 가져오는 이 사건 영업정지처분과 같은 것은 기속적 재량행위로서 그 재량의 한계를 일탈하면 위법하여 항고소송의 대상이 된다 할 것이니 논지는 이유없다.

2. Ground of appeal No. 2

Even if the grounds for business suspension under the Food Sanitation Act have occurred, the disposition of business suspension shall be imposed by comparing the disadvantages suffered by an individual due to the public interest and the business suspension order under the Food Sanitation Act, which would serve as the grounds for the business suspension. According to the reasoning of the judgment below, in light of the contents, circumstances of the disposition, the size of the plaintiff's business, and the disadvantages and ripple effects of the disposition of this case, which are recognized as the grounds for the business suspension, the disposition of this case shall be judged to be illegal beyond the limits of discretion, and it shall be reasonable in light of the records, and the fact-finding and the decision of the court below are justified. In addition, the violation of the rules of evidence and the rules of the Ministry of Health and Welfare's rules cannot be deemed to have the nature of laws and regulations, and it shall not be deemed that the Minister of Health and Welfare, a superior administrative agency, directed the exercise of official authority and ordered its duties, and it shall not be bound by the internal administrative organization, and it shall not be bound by the provisions of Article 26 (1) 4) of the Food Sanitation Act.

3. Ground of appeal No. 3

The issue of whether the administrative agency's suspension period should be certain is the discretionary authority of the administrative agency. However, if it constitutes an abuse of discretionary authority beyond the discretionary authority by violating the principle of public interest, the principle of equality, or the principle of proportionality, etc., it is subject to judicial review as an illegal disposition. However, if the court determines that the disposition of suspension of business is abuse of discretionary authority, it can only order the cancellation of the disposition as an illegal disposition, and if it is within the discretionary authority's reasonable suspension period, it goes beyond the scope of judicial review and is also another authority. Thus, it is difficult to accept the argument that the administrative agency's revocation of the whole suspension of business without cancelling the part exceeding the appropriate suspension period of business during the disposition of suspension of business in the case of this case.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kang Jong-young (Presiding Justice)