Whether a disposition for revocation of a comprehensive alcoholic beverage sales license due to transactions with a non-licensed sales business operator is legitimate

In addition to those stipulated as additional clauses under the Liquor Tax Act, revocation of license cannot be the basis for revocation of license, so a comprehensive disposition for cancellation of license for liquor wholesale business by additional clauses on liquor tax affairs is unfair.

Article 15 of the Liquor Tax Act, etc. of Suspension of Sales

1. The Defendant’s revocation of his comprehensive liquor wholesale business license against the Plaintiff on June 2, 2006.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. 피고는 1979. 9. 14. 원고에게 '무면허 판매업자에게 주류를 판매(중개)한 때에는 종합주류도매업면허를 취소한다.'는 조건을 정하여 종합주류도매업면허를 하였는데, 2006. 6. 2. 원고가 무면허 판매업자인 박ΟΟ에게 주류를 판매함으로써 그 조건을 위반하였음을 이유로 주세법 제9조와 주세사무처리규정 제31조¹⁾에 따라 원고의 종합주류도매업면허를 2006 .6. 9.자로 취소하는 처분('이 사건 처분'이라고 한다)을 하였다.

2. Where it is deemed necessary to preserve liquor tax in granting a license for manufacture of alcoholic beverages, malt or wort, or for sales of alcoholic beverages merely, the head of the competent tax office may determine the term of license, scope of manufacture or sales, or conditions to be observed in manufacture or sales. However, Article 15 (2) of the Liquor Tax Act shall be cancelled when the person who has obtained a license for sales of alcoholic beverages falls under any of the following subparagraphs: Provided, That the license requirements under Article 8 (1) are not satisfied; 2. Where a license for sales business of alcoholic beverages is obtained by illegal means; 3. Where a licensee fails to obtain a license for sales business of alcoholic beverages by illegal means; 4. Where he fails to obtain a license for sales business of alcoholic beverages under the proviso of Article 11-2 (1), (2) or (4) of the Punishment of Tax Evaders Act, or he fails to meet the requirements for revocation of license under Article 15-1 of the Liquor Tax Act for the purpose of sale of alcoholic beverages by illegal means; 1.5. or 2. Where he fails to obtain a license for self-processing of alcoholic beverages beverages under the Liquor Act;

3. If so, even if the plaintiff's assertion is not determined, the plaintiff's claim seeking the revocation of the disposition of this case is without merit, and it is so decided as per Disposition.

1) Provisions for the handling of liquor tax affairs

Article 31 (Cancellation of License for Retail Business, etc.) With respect to a license for manufacture or sale of alcoholic beverages, an additional officer referred to in Article 25 shall be designated as referred to in any of the following subparagraphs, and the license shall be revoked immediately and the license shall be recovered:

1. Where permission or registration of business is revoked pursuant to the provisions of the Food Sanitation Act, etc.;

2. Where a license or permission for an industrial retailer has been revoked under the Fire Services Act, etc.

[Supplementary High Court Decision 2007Nu4063, Oct. 28, 2008]

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The defendant's revocation of the comprehensive liquor wholesale business license for the plaintiff on June 2, 2006 shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Details of the disposition;

The following facts are not disputed between the parties, or acknowledged in full view of the purport of the entire pleadings as evidence No. 1, No. 2, and No. 3.

A. On September 14, 1979, when the Plaintiff Company sold alcoholic beverages from the Defendant to a non-licensed seller, the Plaintiff Company obtained a comprehensive alcoholic beverage wholesale business license (hereinafter “instant license”) by setting forth six conditions such as the condition that “a comprehensive alcoholic beverage wholesale business license is revoked” (No. 2) and operated a comprehensive alcoholic beverage wholesale business at ○○-dong, ○○○ (hereinafter “instant license”).

B. On June 2, 2006, the Defendant issued the instant disposition revoking the Plaintiff’s comprehensive liquor wholesale business license as of June 9, 2006 pursuant to Article 9 of the Liquor Tax Act and Article 31 of the Regulations on the Management of Liquor Tax Affairs on the ground that the Plaintiff sold liquor to ○○, a non-licensed seller, and thus violated subparagraph 2 of the designated conditions.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff asserts that the disposition of this case is unlawful since the conditions (e.g., invalid) are invalid even if the conditions (e., designation conditions), which are the conditions null and void under the law, are determined based on the conditions under Article 15 (2) of the Liquor Tax Act due to the conditions under Article 9 of the Liquor Tax Act, and the disposition of this case is unlawful as it was rendered based on the designation conditions 2, which are the conditions null and void due to the lack of legal basis. ② Gamboo merely carried out the role of the plaintiff in delivering the alcoholic beverages ordered by the plaintiff from his/her customer by using the plaintiff's vehicle, and the plaintiff did not supply alcoholic beverages to the non-licensed seller. ③ Even if the plaintiff supplied alcoholic beverages to Gb○○ who is a non-licensed seller and constitutes the grounds for revocation of the license under Article 15 (2) 2 of the Liquor Tax Act, considering all circumstances such as the situation and contents of the violation of the plaintiff's act, even if the plaintiff's disadvantage is too big compared to

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) Determination as to whether the licensing conditions (non-performance) are invalid

On the other hand, Article 9 of the Liquor Tax Act provides that "the head of the competent tax office may designate the conditions to be complied with in the scope of business of manufacture or sales business of alcoholic beverages, or in the manufacture or sales business of alcoholic beverages, if he/she deems it necessary for preserving liquor tax when he/she deems it necessary for preserving liquor tax," and clearly states that the conditions under subparagraph 2 of the above Article can be designated as the conditions for the license of a liquor sales business, and thus, even if the reasons under subparagraph 2 of the above Article are not listed in the grounds for cancellation or suspension of license under Article 15 (2) of the Liquor Tax Act, if there are changes in circumstances, the right to cancel a narrow meaning is reserved, or a serious public interest needs arise, etc., the administrative agency which has taken the relevant administrative disposition may cancel such disposition.

(2) Determination as to the assertion that a person did not supply alcoholic beverages to a non-licensed dealer

In light of the purport of the entire arguments in the statements in Eul evidence 1, Eul evidence 2, Eul evidence 3-1 through 3, Eul evidence 4-1, and Eul evidence 4-2, new ○○, the representative director of the plaintiff company, sold 740 softs (17,020,000 won) to Y○○ who is a non-licensed seller from January 2005 to September 2005, and Park ○○ sold 740 so-called 7,40 so-called 7,000 so-called 's so-called 's so-called 17,020,000 won) to 6 businesses, such as YY, and requested the issuance of a tax invoice at each of the above businesses, the tax invoice was issued in the name of the plaintiff, and ○○ was not justified for 151 million won through 151 times from August 204 to October 205, 2006.

(3) Determination of the assertion that there is deviation or abuse of discretionary power

(A) Facts of recognition

The following facts are not disputed between the parties, or acknowledged in full view of the purport of Gap evidence 2, Gap evidence 5-3 through 10, Gap evidence 6-4 through 6, Gap evidence 7-3 through 11, Gap evidence 8-4, Gap evidence 9-3 through 10, Gap evidence 10-3, Gap evidence 11, No. 13, Gap evidence 40-1 through 4, and Eul evidence 1.

1) The Plaintiff acquired the instant license on September 4, 1979 and operated a liquor wholesale business. The Plaintiff’s sales revenue in 2004 is KRW 3,660,412,00, and the sales revenue in 2005 is KRW 5,805,048,609, and the sales revenue in 2006 is KRW 4,621,854,587.

2) In the event that the Plaintiff supplied alcoholic beverages to ○○○, ○○ was supplied to his customer, and ○○ was requested by his customer to issue a tax invoice, and ○○ had no tax evasion or evasion due to the provision of the Plaintiff’s tax invoice.

3) Employees of the Plaintiff Company are about 20 persons and are currently supplying more than 890 alcoholic beverages to the Plaintiff Company.

4) The Plaintiff has not been found to evade taxes until now.

(B) Determination

The Defendant’s disposition was conducted under the conditions designated for the Plaintiff’s license pursuant to Article 25 subparag. 2 of the Regulations on the Management of Liquor Tax Affairs, Article 9 of the Liquor Tax Act, Article 1264 of the National Tax Service Directive, and Article 31 of the Regulations on the Management of Liquor Tax Affairs. However, the above provision on the management of liquor tax is merely a general rule on business affairs inside the National Tax Service that sets the general guidelines and standards for handling liquor tax affairs for the purpose of increasing the amount of liquor tax revenue, and there is no legal effect that the court or the public externally binds the liquor. Thus, even if the Defendant’s designation condition No. 2 added at the time of the instant comprehensive liquor wholesale business license only determines the revocation of license as a means of sanction, the Defendant’s revocation of license does not necessarily constitute a ground for revocation of license under the above designation condition, and it shall be determined within the scope of discretionary authority to determine whether to revoke the license by comparing the license with the need for important public interest, its purport, and all circumstances of the relevant case.

In light of the circumstances revealed in the argument of this case, even though the Plaintiff supplied alcoholic beverages to a non-licensed dealer, thereby undermining the distribution order of alcoholic beverages, and causing danger to liquor tax preservation, the Plaintiff’s transaction with a non-licensed dealer does not substantially evade liquor tax or relevant taxes, the transaction volume with a non-licensed dealer during the same period compared to the total sales volume of the year during which the investigation into the Plaintiff was conducted with the Plaintiff falls short of 0.3%, and the developments leading up to the transaction with the non-licensed dealer was conducted. The Plaintiff’s disposition of this case revoked the Plaintiff’s license on the ground of the above violation of the Plaintiff’s above cannot be deemed illegal since it exceeded the scope of the Plaintiff’s discretion or abused it, compared to the public interest to achieve it.

4. Conclusion

Therefore, the plaintiff's claim of this case seeking the cancellation of the disposition of this case shall be accepted with the reasons, and the judgment of the court of first instance is justified with this conclusion, and the defendant's appeal is dismissed as it is without merit, and it is so decided as per Disposition.