In a case where Gap company Gap, which runs a security business with the permission for facility security service, entered into a contract for security service with Eul and provided security service, and four security guards employed in the above apartment in accordance with the contract that provides security patrol and other services, performed such duties as house-to-house management, beginning, field work assistance, and garbage separation and removal, the case holding that the above disposition is lawful on the ground that the commissioner of the local police agency revoked Gap's security service business permission on the ground that "the security business entity should not cause security guards to engage in other services than the licensed security service but violated the Security Services Industry Act by causing security guards employed in Eul to engage in such other services than the licensed security service business."

A company that runs a security business with permission for facility security services entered into a contract for security services with B, and provided security services upon being awarded a contract for security services. As to the fact that four security guards employed in the above apartment in accordance with the contract to conduct security patrol and other duties, including house-to-house management, beginning, field work assistance, and garbage separation and removal, the case is that the commissioner of a district police agency revoked the A security business license on the ground that “a security business entity should not cause security guards to engage in other duties than the permitted security services but violated the Security Services Industry Act by getting them to engage in such other activities than the permitted security services business.”

The case holding that since the duties, such as the selective management of apartment houses, early construction, cell work assistance, and garbage separation and removal, are not related to the prevention of danger as referred to in subparagraph 1 (a) of Article 2 of the Security Services Industry Act, it is clear that the security guards belonging to the company Gap who worked in the apartment complex Eul performed the duties other than the security services since they cannot be viewed as the facilities security service or the prevention incidental thereto, the security guards belonging to the company Eul who worked in the apartment complex are clearly identified as performing the duties other than the security services. "When the security business entity has caused security guards to engage in the duties other than the permitted security services," the case holding that the permission should be revoked in light of the provisions of each subparagraph of Article 19 (1) of the Security Services Industry Act, which provide that "if the security business entity has caused security guards to engage in the duties other than the permitted security services, it shall be revoked", and this is clearly distinguishable from the cancellation of the permission or the suspension of business for a fixed period of time under each subparagraph of paragraph (2) of the same Article.

Subparagraph 1 (a) of Article 2, Article 7(5), and Article 19(1)2 of the Security Services Industry Act

Hai Asset Management Co., Ltd. (Law Firm Selel, Attorney Landscaping-sik, Counsel for the defendant-appellant)

The Commissioner of the Gyeonggi-do Local Police Agency

November 28, 2019

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

On July 18, 2018, the defendant revoked the revocation of the security business license granted to the plaintiff.

1. Details of the disposition;

A. On April 2017, the Plaintiff, a company that runs the security business with a facility security service license, entered into a security contract with the ○○○○ apartment located in Leecheon-si ( Address omitted), and performed the facility security service of the instant apartment upon being awarded a contract (hereinafter referred to as the “instant apartment” and the said contract referred to as the “instant contract”).

B. Article 8(2) of the instant contract provides that the Plaintiff shall perform guard patrol, parking control management, selective distribution management, early and off-the-door operation support, snow removal operation support, recycling arrangement, simple cleaning, and other duties within the scope of exercise of the above apartment management right. The four security guards employed in the said apartment pursuant to the said contract performed duties, such as selective distribution management, early and off-the-counter operation support, and garbage separation and removal.

C. On July 18, 2018, the Defendant revoked the Plaintiff’s security business license, and the reasons are as follows (hereinafter “instant disposition”).

Although a listed security business entity, included in the main text, is prohibited from allowing its security guards to engage in any service other than the licensed security service, it violates the Security Services Industry Act by requiring four security guards, including the Nonparty, etc., who placed in the apartment of this case from May 1, 2017 to engage in an act deviating from the scope of the security service, such as selective distribution management, early and off-the-spot work assistance, and garbage separation and removal.

D. The Plaintiff filed an administrative appeal against the instant disposition, but the Central Administrative Appeals Commission dismissed it on December 18, 2018.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 2, 4, 6, 7, Eul evidence Nos. 6 and 8, the purport of the whole pleadings

2. The plaintiff's assertion

A. Since the Defendant’s duties such as the selective construction management of the apartment of this case at issue are included in the incidental duties of security services under the Security Services Industry Act, the Plaintiff did not allow the said apartment security guards to engage in the duties other than security services.

B. Even if the above apartment security guards’ duties, such as the selective construction management of apartment houses, are deemed to be a discretionary act in view of the fact that the apartment security guards are engaged in the apartment management-related duties other than the security services, and the fact that the security guards’ jobs may decrease and the burden of management expenses may increase for apartment residents, etc. In the case of Article 19(1)2 of the Security Services Industry Act, revocation of the permission for the security services business should be deemed to be a discretionary act. Therefore, the Defendant’s disposition of this case was unlawful solely on the ground that the security guards employed by the Plaintiff without exercising discretion were engaged in the duties other than the security services.

C. Meanwhile, in cases where deemed discretionary acts, it is not appropriate to impose sanctions or disadvantage on the head of the multi-family housing management office, who is the subject of giving instructions other than the security services, and revoke only the permission of the security business entity, as a means to achieve the legislative purpose, and there is serious imbalance between the public interest and the Plaintiff’s private interest. Thus, the instant disposition is a deviation or abuse of discretionary authority.

D. If the revocation of permission in the case of Article 19(1)2 of the Security Industry Act is a binding act, the above provision is unconstitutional because it violates the principle of excessive prohibition because it does not meet the suitability of means, the minimum of damage and the balance of legal interests, thereby infringing on the freedom of occupation. Accordingly, the instant disposition should be revoked.

E. Even if the above assertion is not accepted, considering the special circumstances such as the reality of the multi-family housing security industry as above, the fact that the head of the management office practically directs the security guards' duties, and the fact that, if the nature of the security service contract between the plaintiff and the apartment of this case is deemed delegation not to be a contract, the above apartment can provide a wide range of guidance and supervision on the methods of performing security services to the plaintiff, etc., the instant disposition should be revoked harshly

3. Determination on the legality of the disposition

A. Whether security guards belonging to the plaintiff have provided services other than security services

Article 2 Subparag. 1(a) of the Security Services Industry Act defines facility security services as “the purpose of preventing the occurrence of dangers, such as theft, fire, and congestion in facilities and places requiring security.” Since the duties, such as the selective distribution management of apartment houses, the beginning, field work assistance, and the removal of garbage, are not related to the prevention of dangers, they cannot be deemed as services incidental to the facility security services or their incidental services. It is evident that the Plaintiff’s security guards employed in the apartment of this case were performing the duties other than the security services.

(b) Whether revocation of permission by a permitting agency under Article 19 (1) 2 of the Security Services Industry Act is a discretionary act;

1) The distinction between the so-called binding act and discretionary act in relation to the existence and scope of the discretion of the administrative act should be determined by considering both the stay and form of laws and regulations based on which the act in question was based, the language and text thereof, the main purpose and characteristics of the administrative sector to which the act in question belongs, and the individual nature and type of the act in question themselves. In addition, the judicial review of the binding act is based on the method of determining the legitimacy of the judgment made by the administrative agency from its own position in light of the conclusion of the judgment, after drawing a certain conclusion through the fact-finding and the interpretation and application of the relevant laws and regulations, due to the prolongedness of the pertinent laws and regulations (see Supreme Court Decision 98Du17593, Feb. 9,

2) Article 19(1) of the Security Services Industry Act provides, “Where a security business entity falls under any of the following subparagraphs, the permission-granting authority shall revoke the permission.” Article 19(1)2 provides, “Where a security business entity has its security guards engage in any service other than the permitted security service in violation of the provisions of Article 7(5).” Article 7(5) provides, “The security business entity shall not allow security guards to engage in any service other than the permitted security service.”

As can be seen, in light of the language and text of Article 19(1) of the Security Services Industry Act, permission shall be revoked when it falls under any of the subparagraphs of Article 19(1) of the same Act, which requires revocation of permission. This is clearly distinguishable from those of each subparagraph of paragraph (2) of the same Article by stipulating that “the permission may be revoked or the business may be ordered to suspend all or part of the business for a specified period of not more than six months.” In addition, the grounds under each subparagraph of Article 19(1) of the Security Services Industry Act are clearly distinguishable from those of each subparagraph of paragraph (1) of the same Article, where permission is granted by fraudulent or other illegal means (Article 19(1)2 of the same Act in addition to those of subparagraph 2 in this case, when the permission is granted by the Commissioner of a Local Police Agency (Article 19(1)3), and the reasons under each subparagraph of paragraph (2) of the same Article are when the security service contract was modified without the permission of the Commissioner of a Local Police Agency (Article 19(2).1).

In light of these points, the revocation of permission by the permitting agency on the grounds of Article 19 (1) 2 of the Security Industry Act is bound to be an indecent act.

C. Whether Article 19(1)2 of the Security Industry Act is unconstitutional

Whether a provision of a law is unconstitutional is not subject to this court’s determination. Furthermore, there is no doubt that Article 19(1)2 of the Security Industry Act is unconstitutional. The above provision is justifiable in that it is intended to make a security guard faithful only to the security service, taking into account the characteristics of the security business related to the safety of the people. In the event that a security guard is engaged in any service other than the security service, it is clear that the purpose of the provision is appropriate to achieve such purpose. In light of the high demand for the public interest to make a security guard engage in the security service only, it is difficult to readily conclude that a security business entity is more likely to cause damage to the security business entity than cancelling the security business license of the security business entity, and it is difficult to conclude that there is any other means to achieve the above public interest even if the security business entity causes damage to the security business entity rather than cancelling the security business license of the security business.

D. Whether the instant disposition should be cancelled due to the Plaintiff’s special circumstances, etc.

As seen earlier, in light of the Plaintiff’s fact that the instant contract itself does not include security guards who are not security services, it is clear that the Plaintiff, with clear awareness, has had security guards working in the instant apartment to engage in the duties other than security services. As long as the grounds for Article 19(1)2 of the Security Services Industry Act exist, and the said provision is a binding act, as seen earlier, the Defendant is bound to cancel the Plaintiff’s security business license and may not make any disposition more minor by taking account of other circumstances.

E. Sub-committee

The disposition of this case is legitimate, and all of the plaintiff's arguments disputing it are not accepted.

4. Conclusion

The plaintiff's claim is dismissed on the ground that it is without merit.

[Attachment] Relevant Statutes: omitted

Judges Lee Sang-hoon (Presiding Judge)