2012Gudan3885 Revocation of administrative disposition against business entities violating the Food Sanitation Act.

nan

Yeongdeungpo-gun

Attorney Kim Shin-soo, Counsel for the defendant-appellant

April 12, 2013

April 26, 2013

1. The plaintiff's claim is dismissed.

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

The defendant's disposition of business suspension for 15 days against the plaintiff on October 19, 2012 shall be revoked (the head of the complaint)

on October 31, 2012, 201, the day is deemed to be written by mistake.

1. Details of the disposition;

A. From February 25, 2004, the Plaintiff is operating a general restaurant in the trade name called ○○○ (hereinafter referred to as the “instant business establishment”) from the Dogwon-si, Young-gu, Chungcheongnam-do.

B. On October 19, 2012, the Defendant issued the instant disposition of suspension of business 15 days pursuant to Articles 75(1)13 and 44(1) of the former Food Sanitation Act (amended by Act No. 11690, Mar. 23, 2013; hereinafter the same) on the ground that the Plaintiff, around 00, by approaching a vehicle parked in a public parking lot, he/she violated the matters to be observed by a food service business operator by doing a guest act.

[Ground of recognition] Facts without dispute, Gap evidence 1-2, Gap evidence 2-2, Eul evidence 11-18, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The Plaintiff’s assertion 1) The developments of the instant case do not actively force the Plaintiff to attract the arms of the customers and visit the place of business of the instant case. However, the Plaintiff does not seem to have visited the place of business of the instant case once, and strings that they want to park a vehicle in the public parking lot in front of the instant business establishment, and even if the Plaintiff’s husband’s sexual ○○, so as to allow customers to park in the front of the instant business establishment, and even if they face with the back of the parking, the Plaintiff’s husband’s sexual ○○, while frequently doing so, led the Plaintiff to the front of the vehicle, and let the customer park down at the front of the vehicle, and let the parked in the vehicle, and let the customer park walk down, and did not seem to be an act of inducing the potential customers who passed the public passage, or an act contrary to social norms, and thus, it cannot be deemed that such act constitutes an abuse of discretionary authority or an abuse of order in the instant case’s business, etc., and thus, constitutes an abuse of entertainment of food business.

2) Even if the Plaintiff’s act constitutes a guest act, the Defendant was issued a corrective measure or warning order to the Plaintiff that the said day would be against the Plaintiff’s act in advance, and then an administrative disposition should be taken in the event of such act. However, the Defendant’s act, without such a warning, did not lose the scope of sanction compared to the degree of the violation, thereby excessively harshing the Plaintiff to the extent of the violation.

B. Relevant statutes

As shown in the attached Form.

(c) Fact of recognition;

1) The defendant's scambling scambling scambling scambling in the field where the business establishment of this case is located) in order to prevent excessive acts of attracting visitors, such as interfering with vehicle traffic, etc., thereby undermining the competitiveness of the local image and scambling. From April 1, 2006, the defendant continuously controlled the act of attracting visitors along with the guidance of the business owner from around April 1, 2006.

B) From February 27, 2012 to the following day, the Defendant: (a) placed a campaign for promoting activities of visitors for two days from the day after February 27, 2012 to the day; (b) distributed a guide book stating 2012, “Guidance and Guidelines on the Control of Passenger Activities” for a sound commercial transaction policy, including the following:

- Control period: January 2, 2012 to December 31, 2012

-Control Area: Sponsive Areas Before the Sponsorals

-Control Guidelines

The act of attracting customers by placing a part of the body on the road, which is based on the road boundary line that covers the vehicle by blocking the vehicle and attracting customers. The act of attracting customers by inducing the front parking of the place of business. The act of attracting customers by placing a parking guide. The public parking lot is a matter that the public parking lot is entrusted to the autonomy of the customers and the parking fee collection personnel employed by the local council (the non-road parking lot of the place of business shall be considered as the act of guest, and it shall be subject to punishment).

(d) The act of attracting customers by hanging them and providing them with excessive physical body and character, etc. within the road boundary, on the condition that the level of personnel of them is permitted, and the act of attracting them by placing them in high character.

- The administrative disposition in the course of the disposition at the time of the heading act: 15 days of the first business suspension, 1 month of the second business suspension, 3 months of the third business suspension, Qgu penal provisions: imprisonment with prison labor for not more than 3 years or a fine not exceeding 30 million won) the plaintiff's heading act, and the dispatching ○○ reported to the defendant is a restaurant employee of the trade name, i.e., a seaside village adjacent to the business establishment of this case.

B) On August 27, 2012, 2012: around 30: Around 15, 2012: Around 30, a customer, who was driving ahead of the restaurant of the Maritime Village, parked the vehicle in the public parking lot around the surrounding area and parked the vehicle. The sexual ○○○ of the instant business office, who helps the public parking lot to run the vehicle and helps him to run the vehicle up to the public parking lot, and, after having opened the door, her restaurant to her restaurant, she moved to her restaurant, and she moved to the instant business office.

C) On August 29, 2012, ○○ filed a report with the Defendant on August 29, 2012 along with a photograph (No. 20 No. 20) stating that the Plaintiff had provided the following visitors at the instant business establishment operated by the Plaintiff:

① On August 27, 2012: around 30, a customer who intends to enter a piracy village sought a parking place, and then parked a vehicle in the surrounding parking lot due to a narrow relation with the parking space. The sexual ○○○○ of the instant business office went outside of the instant business office and became a parking lot along with a photograph (No. 20 certificate and a car parked at a public parking lot) and calls for customers.

② On August 29, 2012: (a) around 00 to 10:00, the Plaintiff had a photograph affixed to the principal and had a stamped passenger car parked in after being stamped by the Plaintiff on his/her photograph.

D) On August 29, 2012, at around 00, the Plaintiff prepared and issued a letter of confirmation (person) of the content that “the Plaintiff was engaged in the act of visiting outside his/her place of business in a public parking lot to receive guidance on the parking of customers on August 27, 201 from among the contents of the act of visiting a food sanitation supervisor, who was going to the Young-gun Sanitary System, and attached to the front class, which is a civil petition report, and to attract customers to his/her place of business.”

3) Before the control of this case, the Plaintiff’s guidance to the Plaintiff, while the best container, which is a guest supervisor in exclusive charge of the Yeongdeungpo-gun, had been taken from 201 to 9 November 2012, 201, when performing the guest surveillance duty, had access to the vehicle parked in the public parking lot in front of the business establishment of this case, and had the customer go to go to the public parking lot, and had the customer go to go to the place of business of this case by visiting 2 to 3 times, while guiding the vehicle that the sexual ○○○○ of the business establishment of this case is going to go to go to the public parking lot.

[Ground of recognition] Each entry and video of Eul evidence Nos. 1 through 12, 15 through 21 (including various numbers), witness testimony and the purport of the whole pleadings

D. Determination

1) Article 44(1) of the former Food Sanitation Act provides that "food service business operators and their employees shall comply with the matters prescribed by the Ordinance of the Ministry of Health and Welfare in order to manage business, maintain order in business, and promote public health and sanitation. Accordingly, Article 57 of the Enforcement Rule of the same Act provides that "the matters to be observed by food service business operators, etc. [Attachment Table 17] shall be observed, and subparagraph 6 (n) of the attached Table 17 shall not be allowed to attract people as one of the provisions for compliance."

Considering the language meaning, legislative intent, etc. of the above provision, “act of attracting customers, which is prohibited by the above matters to be observed,” cannot be deemed as having engaged in any act of attracting customers to the place of business, and in light of the social common sense, it shall be limited to the act of hindering customers’ normal choice of business by hindering customers by using a scambling horse or means, etc., which seems to go beyond the limit of active business activities, and thereby impairing the order of sound food entertainment business, such as bringing them to the place of business.

B) As seen in the above facts, the place where the sexual ○○○○ of the instant business office helps customers park is a public parking lot with separate parking personnel, and the act of sexual ○○○’s act, which referred to as “I go ahead of his restaurant and go to his restaurant,” while attempting to park, constitutes an act that harms the order of food entertainment business by interfering with customers’ normal choice beyond the limit of active business activities in light of the social norms, and by interfering with customers’ normal business activities, is deemed to constitute an act that harms the order of food entertainment business.

Accordingly, the Plaintiff asserts that the customer who delivered the instant business office to Sung○○○ had already visited the instant business office once, and had been able to park merely as the customer. However, the Plaintiff’s statement on No. 4, which seems consistent with this, is difficult to believe in light of the above facts of recognition, and there is no other evidence to acknowledge it.

2) Whether the discretionary authority is deviates or abused or not

The above active business activity not only infringes on the right of choice of a customer's normal business place, but also harms the sound business morals, the defendant continuously controlled with the business guidance to eradicate these types of acts from April 1, 2006, and the personnel exclusively in charge of the guest surveillance belonging to the Young-gun continued to control the business guidance in order to eradicate these types of acts of the guest, and the sexual ○○'s sexual ○ ○ helps the guest to leave and park in the public parking lot prior to the act of the guest in this case, and witnessing the act of the guest in this case to attract the guest to the business place, and such an act constitutes the act of the guest in this case and the object of control is to be controlled.

As such, the Plaintiff’s assertion that the instant disposition was a deviation or abuse of discretionary power is difficult in view of the fact that the instant disposition was taken two to three times, and that it conforms to the criteria for administrative dispositions prescribed by the Enforcement Rule of the Food Sanitation Act.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Jae-sub

A person shall be appointed.

A person shall be appointed.