Administrative Appeals (Haengjeong Simpan) is a legal system that allows citizens whose rights and interests have been violated by an administrative agency's illegal or undue disposition (or the exercise/non-exercise of public authority) to quickly and easily seek legal relief. It is advantageous because it is free of charge, the procedures are simple, and cases are processed quickly.
Successful Reduction of Business Suspension from 15 Days to 10 Days: A Food Sanitation Act Case Analysis for Foreign Business Owners
Hello, this is Heo On, your Administrative Law Specialist. For small business owners, especially those running restaurants and cafes in Korea, a Business Suspension sanction due to a Food Sanitation Act violation can be devastating. This case proves that even if a violation is found, relief is possible through Administrative Appeals.
Case Summary & Key Issues
Sanction: Business Suspension for 15 days for storing two packages of tofu that were one day past their expiration date.
Petitioner's (Business Owner's) Claim: The tofu was already separated in a blue plastic bag and marked as 'Disposal.' It was not intended for cooking or sale. They argued that the 15-day suspension was too harsh (gajok - 가혹), given the current economic difficulties facing small businesses.
Respondent's (Administrative Agency's) Claim: The inspection photos showed the expired tofu was in the refrigerator without a clear 'Disposal' label. The objective fact of violation is sufficient for the sanction; the owner's subjective intent or claim of simple carelessness is not a special circumstance for exemption.
Committee's Decision (Administrative Appeals): The violation itself was acknowledged, as the tofu was not clearly marked 'Disposal.' However, the Committee found the sanction excessive, considering:
The small scale of the business.
The owner had no prior history of violation.
The economic hardship caused by the suspension. The Committee applied the general rule for mitigation (reduction by up to 1/2 for minor, non-intentional violations) and reduced the 15-day suspension to 10 days.
Onhaeng's Analysis & Advice for Foreign Owners
This case clearly shows that even when a violation is undeniable, you have the right to appeal the severity of the sanction. For foreign restaurant owners in Korea, understanding this process is crucial.
Key takeaway: Always mark expired or defective food items clearly and unequivocally as '폐기 (Disposal)' and store them completely separate from sellable food.
Administrative Appeals Strategy: If you receive a sanction, focus not only on denying the violation but also on the principle of proportionality. Document the minor nature of the violation (e.g., only one day expired, small quantity), your lack of previous violations, and the severe economic impact the sanction will have on your small business.
Seek Expert Help: Navigating the Administrative Appeals process can be complex due to the legal terminology and procedural requirements. A qualified Administrative Law Specialist (Haengjeongsa) can effectively argue for mitigation on your behalf.
Conclusion
Don't give up immediately if you receive a Business Suspension notice. By proactively using the Administrative Appeals system and presenting strong evidence of mitigation, you can reduce your sanction and minimize business loss.
Understanding the Administrative Appeals Filing Deadline (청구기간)
The filing period for an Administrative Appeal (Haengjeong Simpan) is absolute and unchangeable. Any appeal filed after this deadline will be formally dismissed (Gakha) due to the expiration of the period.
Dismissal (Gakha): An administrative disposition that formally rejects an application made to a state agency.
You must file your appeal within both of the following two deadlines:
Within 90 days from the date you became aware of the administrative disposition.
Within 180 days from the date the disposition actually occurred (exceptions apply).
If either of these two deadlines passes, your appeal will be dismissed due to the expiration of the filing period.
Expert Advice: Consulting with an expert from the time of receiving the pre-notification of the administrative disposition can save you time, effort, and costs.
