(영문) 서울고등법원 2015.12.29.선고 2015누69197 판결

The judgment of the first instance shall be revoked. The defendant revoked the disposition of business suspension against the plaintiff on September 29, 2014.

Reasons

1. Quotation of judgment of the first instance;

The reasoning for the court’s explanation on this case is as stated in the reasoning of the judgment of the court of first instance, except for the addition of the judgment on the plaintiff’s argument under Paragraph (2) below, and thus, the same is cited in accordance with Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of

2. Judgment on the Plaintiff’s assertion of the trial

A. The plaintiff's assertion

In light of the fact that the Plaintiff did not intentionally keep the unreported imported food, the Plaintiff’s act of storing unreported imported food could not have a significant impact on the national health, the Plaintiff did not have profit from selling the unreported imported food, and the Plaintiff’s act of infringing private interests compared to the public interest in order to achieve the instant disposition, such as where the Plaintiff cannot continue to engage in restaurant business due to the instant disposition, etc., by taking into account the situation where the Plaintiff was faced with the situation where the Plaintiff could not continue to engage in restaurant business, etc., as prescribed by the relevant statutes, such as the Food Sanitation Act, etc., the instant disposition was rendered without considering the mitigation of the period of business suspension or the disposition of penalty surcharge on behalf of the business suspension as prescribed by the relevant statutes, such as the Food Sanitation

B. Determination

Article 89 [Attachment 23] 1 of the Enforcement Rule of the Food Sanitation Act, which provides for specific administrative disposition standards for violations of the Food Sanitation Act, provides that when a person sells, stores, displays, etc. imported foods, etc. without filing an import declaration in violation of Article 4 of the Food Sanitation Act, business suspension for two months shall be imposed at the time of the first violation. On the other hand, even if the standards for restrictive administrative disposition are prescribed in the form of Ordinance, it is nothing more than that prescribed within the administrative agency's internal business regulations, and it cannot be deemed legitimate merely because such disposition externally affects citizens or courts. However, the above criteria for disposition do not conform to the Constitution or laws, or the application of such standards is considerably unreasonable in light of the substance of the violation of the Act and the purport of the relevant statutes, and there is no reasonable ground to believe that the above disposition is unlawful or unreasonable. Thus, the above disposition does not require the Plaintiff to take into account the fact that the Plaintiff's act of selling the foods, etc. in accordance with the standards for imposition of a fine or its discretionary power for the purpose of preventing its sale.

3. Conclusion

Therefore, the judgment of the first instance is just, and the plaintiff's appeal is dismissed as it is without merit, and it is so decided as per Disposition.