The case holding that the disposition of non-permission of an application for prohibited acts or cancellation of facilities in the school environmental sanitation and cleanup zone for the operation of a singing practice room is an abuse of discretion or beyond its scope by putting a comparison and bridge between public interest and private interest.

The case holding that the disposition of non-permission of an application for prohibited acts or cancellation of facilities in the school environmental sanitation and cleanup zone for the operation of a singing practice room is an abuse of discretion or beyond its scope by putting a comparison and bridge between the public interest and private interest.

Article 6 (1) of the School Health Act, Article 27 of the Administrative Litigation Act

Plaintiff (Attorney Kim Jong-ok, Counsel for the plaintiff-appellant)

The head of the Dong Office of Education in Busan Metropolitan City

August 24, 2006

1. The defendant's rejection disposition against the plaintiff on April 18, 2006 against the plaintiff is revoked.

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

The same shall apply to the order.

1. Details of the disposition;

The following facts are not disputed between the parties:

A. On April 12, 2006, the Plaintiff filed an application with the Defendant for the prohibition of prohibited acts and cancellation of facilities in the school environmental sanitation and cleanup zone for the operation of a singing practice room (hereinafter “instant singing practice room”) on the 3th floor of 143.54 square meters among the 4th floor buildings located in the Busan Eastdong-gu (Seongdong), located in the relative Cleanup Zone among school environmental sanitation and cleanup zones (hereinafter “instant building”), among school environmental sanitation and cleanup zones.

B. On April 17, 2006, the Defendant rejected the above application on the ground that it had an adverse effect on learning at Busan Central Female High School and school health sanitation (hereinafter “instant disposition”).

2. Whether the disposition is lawful;

A. The parties' assertion

(1) The plaintiff's assertion

(A) The instant building is located at a considerable distance from the nearby Busan Central Female High School (hereinafter “Seoul High School”). The instant building does not seem or noise. The surrounding areas of the instant building deviates from the Plaintiff’s common school to the place where adult-centered village facilities enjoy, and there is no student’s access, and the singing practice room is not likely to adversely affect students’ study and school health and sanitation. In addition, the building located adjacent to the same relative Cleanup Zone and the side side of the building located within the same other Cleanup Zone are running singing practice rooms.

(B) The Plaintiff failed to use the instant building efficiently due to the instant disposition, thereby reporting considerable monetary damage.

(C) Therefore, the instant disposition should be revoked on the ground that it was unlawful because it exceeded or abused the scope of discretion.

(2) The defendant's assertion

(A) With respect to the instant building, each of the prohibition cancellations has been rejected on August 8, 2003, in relation to the singing practice room, August 9, 2002, and February 27, 2006, regarding the multi-media service facility manufacturing business.

(B) Since there are large-scale discount points and subway stations in the neighboring areas of the instant building, and there are many entertainment entertainment facilities, and the surrounding environment is gradually populated, the School Environment Cleanup Committee set up a policy to classify them into an educational environment protection area that prohibits the installation of singing practice room, etc. on the basis of the roads front the instant building (hereinafter “instant roads”), and the direction to classify them from the personal property right protection area to the cancelled area that permits the installation of singing practice room, etc.

(C) Considering the location of the instant building, the distance from the school, etc., if the instant application is permitted, it cannot prevent the establishment of a harmful business establishment up to the place adjacent to the school’s emotional health, and the current business status of the singing practice room is currently being operated similar to the business activity of the entertainment entertainment business establishment, and in particular, it may affect female and high school students, who are able to be respected.

(D) In the same purport, two cases of refusing the application for cancellation of the prohibition regarding the educational environment protection area based on the road in this case, in principle, were rejected, and the permitted businesses belong to the area of the cancellation or set up the above criteria. Therefore, the building in this case differs from the building in this case.

(E) Therefore, the instant disposition is lawful.

B. Relevant statutes

It is as shown in the attached Form.

(c) Markets:

(1) Criteria for revocation of prohibition

Pursuant to the proviso to Article 6 (1) of the Act, a City/Do education committee or a person designated by the superintendent of the education or the superintendent of the education or the superintendent of the education or a facility shall determine whether an application for the cancellation of prohibited acts and facilities in school environmental sanitation and cleanup zone has no adverse effects on learning and school health and sanitation, and the prohibited acts and facilities are belonging to the discretionary acts of the relevant City/Do education committee or the superintendent of the education or the person designated by the superintendent of the education or the relevant superintendent of the education or the measures to continuously cancel (refusing) or prohibit (refusing) the prohibited acts and facilities. In order for them to be illegal due to deviation from and abuse of discretionary power, it shall be determined carefully and carefully by reasonably comparing various matters such as the acts and facilities, the types and scale of the facilities, the distance and location of the school, the types and number of students, the surrounding environment of the schools, and other acts and facilities together with other acts and facilities in the surrounding areas, and the disadvantage of the other party, including the infringement of property rights (see, e.

(2) Facts of recognition

The following facts are acknowledged in full view of the statements and images of evidence Nos. 3-1, 2, 1-1, 3-3, 2-2, and 3-3, and the purport of the whole pleadings as a result of on-site verification by this court.

(A) The instant building is located within 158 meters from the boundary line of the neighboring school, and 252 meters from the entrance, and is located in the commercial areas between subway stations and the main entrance. In addition, entertainment establishments, such as main stations, etc. are concentrated around the instant building. Moreover, as the instant building enters another building between the said school and the said school, noise caused by the act of business in the said school does not occur or advertising signboards do not appear. The instant road in front of the instant building is one-lane, and its width is 6-7 meters wide.

(B) The Defendant: (a) issued a prohibition order with respect to the singing practice room business and the PC room business for which an application was filed for cancellation on the third floor of the instant building; (b) however, the party room business for which an application was filed on May 9, 2003 was granted permission; and (c) currently, the third floor of the instant building is in operation, “(trade name omitted).” Meanwhile, the first floor of the instant building and the second floor are in operation, respectively.

(C) Through a written opinion, the head of the neighboring school presents his opinion that the number of students may enter the school near the route of the main school where at least 1,000 students attend the school among 1,319 incumbent students, and in particular, there is a concern that entry after the night study is likely to have a negative impact on the study and life of students.

(D) Within the relative Cleanup Zone of a neighboring school, a singing practice room, and a sound sea singing practice room is running business. The above singing practice room is almost similar to the instant building from a student’s main entrance. On the immediate next building of the instant building, a singing practice room is running lawfully by the Defendant subject to the prohibition and cancellation. On the other hand, the business places, which were recently rejected from the Defendant, are located on the side of the road where the distance from neighboring schools is close to the instant building, and are adjacent to the main entrance or approach to the adjacent school.

(3) Whether the discretionary authority is deviates or abused or not

(A) Comprehensively considering the above relevant statutes and legal principles and surrounding circumstances, the building of this case seems to be in place from the main school of students nearby schools, but its neighboring areas are set up a commercial zone where entertainment business places are concentrated, and even if other singing practice room businesses are already prohibited, it is difficult to expect particular effectiveness in the protection of school environmental sanitation. The building of this case in the above school is not immediately visible, and it is not likely that the noise level due to the business activities of the above school is not likely to occur. On the other hand, the building of this case is currently being operated after the cancellation of the permission from the defendant in terms of the impact on school education and health compared to the building of this case. On the other hand, the road of this case is one-lane and 6-7 meters away from the main school of neighboring schools, and the building of this case and 6-7 meters away from the main school, and the building of this case are already formed as an area where the school of this case is located within the boundary of the school of this case and the building of this case without considering its surrounding environment or circumstances.

(B) Therefore, the instant disposition should be revoked in an unlawful manner.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.

Judges Gangnam-gu (Presiding Judge)