[1] Whether a resort condominium business constitutes “a lodging business under Article 2(1)2 of the Public Health Control Act” stipulated as prohibited acts and facilities within an educational environment protection zone under Article 9 subparag. 27 of the Educational Environment Protection Act (affirmative)

[2] In a case where Gap corporation filed an application for the approval of an assessment of educational environment with a view to newly building a condominium in a project site located within an educational environment protection zone, and the head of the competent district office of education sent a written request for supplementation stating that "the resort condominium business under Article 3 (1) 2 (b) of the Tourism Promotion Act is not stipulated in prohibited acts and facilities under the Act on the Protection of Educational Environment, but specific preventive measures against civil petitions that raise concerns about commercial sex acts, etc. are not provided to Gap company, and then notified the superintendent of education of administrative guidelines to the effect that "the application of Article 9 subparagraph 27 of the Act on the Protection of Educational Environment concerning Acts and Facilities Prohibited in Educational Environment Protection in Educational Environment Protection in relation to Condominium Business" is applied to Gap company, the case holding that the above disposition is difficult to be deemed to have a public opinion statement of the head of the competent district office of education subject to trust, and that approval of an educational environment assessment by the head of the competent district office of education is likely to seriously undermine the public

[1] Article 9 subparag. 27 of the Educational Environment Protection Act defines prohibited acts and facilities within an educational environment protection zone as “the accommodation business under Article 2(1)2 of the Public Health Control Act and hotel business under Article 3(1)2(a) of the Tourism Promotion Act.” Article 2(1)2 of the Public Health Control Act defines “the business of providing facilities, equipment, etc. so that grandchildren can sleep and stay.” Article 4 subparag. 1 of the Enforcement Decree of the Public Health Control Act is subdivided into “general lodging business” and “living accommodation business” depending on whether accommodation business is included in cooking facilities. Article 3(1)2 of the Tourism Promotion Act divides a tourist accommodation business into “tourist accommodation business” and “ resort condominium business”, and combines it into “tourist accommodation business” into “tourist accommodation business and resort condominium business,” and provides its members, co-owners, or other tourists with facilities suitable for cooking and cooking, or provides them with such facilities as food, accommodation, etc.

Article 9 Subparag. 27 of the Educational Environment Protection Act intends to create a pleasant school environment by establishing a certain area around a school, which is a major activity space of students, as an educational environment protection zone within the minimum scope, so that juveniles may create a sound and harmonious personality. By preventing lodging business within an educational environment protection zone, the purpose of Article 9 Subparag. 27 is to prevent and protect students from various harmful environments due to speculative acts, such as obscenity or obscene acts, distribution of obscene materials, gambling, etc., thereby promoting the sound fostering of students and the efficient enhancement of school education.

In full view of the contents and structure of the above relevant provisions’ legislative purport, a resort condominium business ought to be deemed to constitute “a lodging business” under Article 2(1)2 of the Public Health Control Act, which is defined as prohibited acts and facilities within an educational environment protection zone under the said provisions.

[2] Where Gap corporation filed an application for the approval of an assessment of educational environment to newly build a condominium in a project site located within an educational environment protection zone, and the head of the competent district office of education sent a written request for supplementation stating that "the resort condominium business under Article 3 (1) 2 (b) of the Tourism Promotion Act is not stipulated in prohibited acts and facilities under the Act on the Protection of Educational Environment," but specific preventive measures against civil petitions that raise concerns about sexual traffic, etc. are not provided to Gap company, and then rejected the application for the approval of the assessment of educational environment under Article 9 subparagraph 27 of the Act on the Protection of Educational Environment and Facilities Prohibited in Educational Environment Protection in an educational environment protection zone (hereinafter "Educational Environment Act"), the case held that the head of the district office of education provided an opinion in the written request for supplementation that "the resort condominium business is not defined as prohibited acts and facilities under Article 9 subparagraph 27 of the Educational Environment Act," but it cannot be deemed that the above written request for the assessment of educational environment cannot be seen as a supplement to the above written request for the assessment of educational environment.

[1] Articles 6(1) and 9 subparag. 27 of the Educational Environment Protection Act, Article 2(1)2 and (2) of the Public Health Control Act, Article 4 subparag. 1 of the Enforcement Decree of the Public Health Control Act, Article 3(1)2 of the Tourism Promotion Act / [2] Articles 6(1) and 9 subparag. 27 of the Educational Environment Protection Act, Article 2(1)2 and (2) of the Public Health Control Act, Article 4 subparag. 1 of the Enforcement Decree of the Public Health Control Act, Article 3(1)2 of the Tourism Promotion Act, Article 4(2) of the Administrative Procedures Act

BSP Co., Ltd. (Attorneys Park Gi-hoon et al., Counsel for the plaintiff-appellant)

The head of the Busan Metropolitan Government Office of Education Education (Attorney Jin-Jin Park, Counsel for defendant-appellant)

Busan High Court Decision 2019Nu21481 decided September 6, 2019

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. Case summary and key issue

A. The reasoning of the lower judgment reveals the following circumstances.

1) On March 15, 2018, the Plaintiff filed an application with the Defendant for an assessment of educational environment pursuant to Article 6(1) of the Educational Environment Protection Act (hereinafter “Educational Environment Act”) to newly build three condominiums, etc. on the aggregate of KRW 18,468,30,000 in Busan Shipping Daegu ( Address omitted) (hereinafter “instant project site”). Of the instant project site, part of the instant project site constitutes an educational environment protection zone (large protection zone) under Article 8(1) of the Educational Environment Act within a distance of 21 meters from the entrance of the adjacent ○ Elementary School (hereinafter “Educational Environment Act”) and constitutes an educational environment protection zone (large protection zone) within a distance of 130 meters from the adjacent △△△ kindergarten.

2) The Defendant sent a written request for supplementation to the Plaintiff to the effect that matters related to school safety, sunshine, air quality, noise, vibration, etc. are supplemented and submitted three times. On April 18, 2018, the written request for supplementation was stated as follows: “Although the resort condominium business under Article 3(1)2(b) of the Tourism Promotion Act is not stipulated as prohibited acts and facilities under the Educational Environment Act, a civil petition raising concerns about commercial sex acts and new and new types of business, etc., it is considerable time to present specific preventive measures.”

3) On July 2018, the Defendant notified the superintendent of education of Busan Metropolitan City to the effect that the resort condominium business under Article 3(1)2(b) of the Tourism Promotion Act constitutes an act and facility prohibited in educational environment protection zones pursuant to Article 9(27) of the Educational Environment Act (hereinafter “instant legal provision”), according to the result of statutory interpretation of the Ministry of Government Legislation, the Defendant applied the said provision to the resort condominium business in the future. On July 24, 2018, the Defendant returned the Plaintiff’s application for the approval of educational environment assessment to the Plaintiff.

B. The key issue of the instant case is (1) whether a resort condominium business constitutes a prohibited act or facility stipulated in the instant legal provision, and (2) whether the instant disposition is against the principle of trust protection if it is deemed that it constitutes a prohibited act or facility.

2. Whether a resort condominium business constitutes an act or facility prohibited in an educational environment protection zone pursuant to the provisions of this Act.

A. Article 2(1)2 of the Public Health Control Act provides that prohibited acts and facilities within an educational environment protection zone shall be construed as “a hotel business under Article 2(1)2 of the Public Health Control Act and a hotel business under Article 3(1)2(a) of the Tourism Promotion Act.” Article 2(1)2 of the Public Health Control Act defines “business of providing facilities, equipment, etc. so that a son may sleep and stay” as “business of providing facilities, equipment, etc. so that a son may sleep and stay.” Article 4 subparag. 1 of the Enforcement Decree of the same Act, upon delegation of Article 2(2) of the same Act, is subdivided into “general lodging business” and “living accommodation business.” Article 3(1)2 of the Tourism Promotion Act divides a tourist accommodation business into “ hotel business” and “ resort condominium business.” Article 3(1)2 of the same Act defines a resort condominium business as “facilities suitable for tourist accommodation and cooking to provide his/her members, co-owners, or any other tourists, or to provide them with food, accommodation, etc.”

B. The instant legal provision aims to ensure the sound fostering of students and the efficient enhancement of school education by establishing a certain area around a school, which is a school’s major activity space, as an educational environment protection zone within the minimum scope so that juveniles can form a sound and harmonious character, and by preventing lodging business within an educational environment protection zone, thereby preventing them from doing so in an educational environment protection zone. The purpose of the instant legal provision is to block and protect students from various harmful environments due to speculative acts, such as leaps or obscene acts, distribution of obscene materials, gambling, etc.

C. Comprehensively taking account of the contents and structure of the relevant provisions and the legislative purport of the instant legal provisions, resort condominium business ought to be deemed to constitute “a lodging business under Article 2(1)2 of the Public Health Control Act” as prohibited acts and facilities in educational environment protection zones under the instant legal provisions. The specific reasons are as follows.

1) The Public Health Control Act provides for matters concerning the sanitary control, etc. of business used by the public (Article 1) and, except as explicitly provided for in the Decree on the Public Health Control Act (Article 2(1)2 proviso of the Public Health Control Act and Article 2(1) of the Enforcement Decree of the same Act), with respect to all accommodation facilities. The Public Health Control Act provides for the regulation on reporting, entry, inspection, closure of a place of business, etc. of a public health business entity by a Mayor/Do Governor, etc. under Articles 9 and 11, and provides for “in the case of a tourist accommodation business registered under the Tourism Promotion Act, prior consultation shall be made with the head of the competent administrative agency of the relevant tourist accommodation business” under Articles 9(6) and 11(1) of the Enforcement Decree of the Public Health Control Act, it is assumed that the accommodation business under the Tourism Promotion Act also constitutes a public health business subject to the Public Health Control Act. Moreover, Article 18(1)1 of the Tourism Promotion Act provides for “the accommodation business under the Enforcement Decree of the Public Health Control Act” as one of Article 196 of the same Act.

2) As seen earlier, Article 6(1)13 of the former School Health Act (amended by Act No. 13946, Feb. 3, 2016; hereinafter the same) only provides that accommodation facilities prohibited in the school environmental sanitation and cleanup zone shall be “respondings, inns, and do not properly reflect the types of accommodation facilities classified or diverse in the relevant statutes. In particular, as the provisions of the Tourism Promotion Act separately regulate tourist hotel business, there were several special provisions in the relevant statutes have been applied. Accordingly, there was a controversy in administrative practice as to whether tourist hotel business at the time of the enforcement of the former School Health Act constitutes an act and facility prohibited in the school environmental sanitation and cleanup zone. Accordingly, the Educational Environment Act enacted on February 3, 2016 explicitly removed the provisions of Article 6(1)13 of the former School Health Act that prohibit hotel business from being subject to the amendment of the Act on the Promotion of Public Health Control and Security Act, with the exception of the amended provisions of the Act.

Considering the history of the legal provision of this case and the background leading up to the enactment and amendment thereof, it cannot be interpreted that the legal provision of this case stipulated the hotel business under the Tourism Promotion Act, separate from the accommodation business under the Public Health Control Act, refers to only the rest of accommodation business except the accommodation business, or a resort condominium business among the accommodation business cannot be construed as excluded from the prohibited facility.

3) The resort condominium business is distinct from a general lodging business in that it receives regulation and benefits under the Tourism Promotion Act as one of the tourist accommodation businesses for the creation of tourism conditions, the development of tourism resources, and the promotion of tourism business, provides its members, co-owners, etc. as its main customers, and excludes them from business establishments banned from employing juveniles under the Juvenile Protection Act and subordinate statutes. However, the resort condominium business basically constitutes a public morals and a place of business under Article 2 subparag. 4 of the Act on the Regulation of Amusement Businesses Affecting Public Morals as one of lodging facilities, and there is no substantial difference from other lodging

Therefore, there is no reason to interpret that only the exclusive resort condominium business is excluded from a lodging business prohibited by the legal provision of the instant case. The unique characteristics of the condominium business asserted by the Plaintiff, family-friendly character, or function as a complex cultural facility may be considered in determining the exceptional possibility of permission in a relative protection zone (see the proviso to Article 9 of the Educational Environment Act and Article 8(1)2 of the Educational Environment Act).

4) Meanwhile, if a person seeking to operate a resort condominium business does not constitute a prohibited act or facility under any provision of the Act of this case, it is likely that the regulation and regulation under the Educational Environment Act may increase by changing the type of business to a resort condominium business.

D. As seen earlier, the legislative purpose of the instant legal provision is justifiable and the propriety of the method is recognized. Since the instant legal provision does not extensively limit the use of a building and the type of business in an educational environment protection zone, but is limited only to the use of a building or the conduct of business for a specific purpose, i.e., accommodation business, and thus, the ownership of the relevant site or building is limited only to a part of the private utility within the scope of the usage of “ Lodging business” among the functions of the relevant land or building. Therefore, the restriction on the freedom of occupation and property rights under the instant legal provision cannot be deemed as excessive beyond the necessary extent to achieve the legislative purpose. Furthermore, the public interest, such as the sound fostering of students and the enhancement of school education, rather than the disadvantage that the owners of land or building or the lodging business would incur, by prohibiting accommodation within an educational environment protection zone, is unreasonable (see Supreme Court Decision 2012Du42632, Jun. 28, 2012). Accordingly, the allegation in the grounds of appeal assigning the instant legal provision to the purport that it is unconstitutional.

E. In the same purport, the lower court determined that the resort condominium business constitutes prohibited acts and facilities in educational environment protection zones under the instant legal provisions. In so determining, the lower court did not err by misapprehending the legal doctrine on the unconstitutionality of the instant legal provisions or legitimate interpretation, thereby adversely affecting the conclusion of the judgment, contrary to what

3. Whether the principles of trust protection are violated;

A. In general, in order to apply the principle of trust protection to an act of an administrative agency, the administrative agency should name the public opinion that is the subject of trust to an individual, and the administrative agency should not be responsible for the trust of the individual. (2) The individual should have trusted that the name of the opinion is legitimate and trusted; (3) the individual should have committed any act corresponding thereto; and (4) the administrative agency should have made a disposition contrary to the name of the opinion so that the interests of the person trusted in the opinion are infringed; and (5) When taking an administrative disposition in accordance with the name of the opinion, it should not be likely to seriously undermine the public interest or legitimate interests of a third party (see Supreme Court Decision 2004Du46, Jun. 9,

B. We examine the above circumstances in light of these legal principles.

1) In the written request for supplement on April 16, 2018, the Defendant presented the opinion that “the resort condominium business is not stipulated as prohibited acts and facilities under the provisions of the instant legal provision.” However, this is merely a presentation of the opinion on the interpretation of the relevant statutes in the interim review process to determine whether to approve the assessment of educational environment, and it cannot be deemed that the Defendant finally expressed the public opinion that it would approve the assessment of educational environment. Rather, according to the written request for supplement sent by the Defendant to the Plaintiff several times, it constitutes an expression of the view that it is difficult to approve the assessment of educational environment

In addition, the opinion of the administrative practice and the office of education that the resort condominium business did not constitute an act or facility prohibited by the former School Health Act is related to the provisions of the former School Health Act before the enactment of the Educational Environment Act. Therefore, it cannot be viewed as a public opinion related to the application for the approval of the assessment of educational environment of

2) The Plaintiff plans a resort condominium business at the stage of business preparation and proceeds from an additional review upon the Defendant’s request for supplementation. It is difficult to see that the Plaintiff’s interest infringed on the instant disposition is larger than that of the Plaintiff. On the other hand, if resort condominiums are newly constructed in an educational environment protection zone, negative impact on the students’ right to study and educational environment is very significant.

3) Ultimately, the instant disposition is difficult to be deemed to have a public opinion of the Defendant, which is the subject of trust, and the Defendant’s approval on the assessment of educational environment is likely to substantially undermine the public interest or legitimate interests of a third party. Therefore, it does not go against the principle of

C. In the same purport, the lower court determined that the instant disposition did not go against the principle of trust protection. In so determining, the lower court did not err by misapprehending the legal doctrine on the principle of trust protection, contrary to what

4. Conclusion

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 Park Sang-ok (Presiding Justice)