Remedies Against Business Suspension

In the case of a general restaurant, detection of food poisoning bacteria, the use or storage of products past their consumption deadline, the sale of alcohol to minors, and similar violations, if discovered, may result in administrative dispositions such as suspension of business.

▶ Where food poisoning bacteria are detected

Where food poisoning bacteria are detected, the disposition may be suspension of business for one month; where food has rotted or spoiled, suspension of business for 14 days; and where it contains or is contaminated with toxic or harmful substances posing a risk to human health, the disposition may be revocation of the business license or closure of the establishment.

▶ Use and storage of products past their consumption deadline

If it is discovered that food ingredients past their consumption deadline were used in cooking or sold, the disposition is suspension of business for 15 days on a first violation, one month on a second violation, and three months on a third violation.

▶ Sale of alcohol to minors

The sale of alcohol to minors is the most common occurrence in general restaurants and is the ground subject to the most severe punishment.

To prevent the sale of alcohol to minors, it is advisable to make efforts such as posting notices on the prohibition of providing alcohol to minors and providing staff training using manuals, so that mitigating circumstances may be taken into account if a violation is discovered.

▶ Construction and building industry: unregistered subcontracting, failure to perform construction management

Where there is a violation of the Framework Act on the Construction Industry, the Fair Transactions in Subcontracting Act, or similar laws, a suspension of business disposition may be imposed.

Representative examples include defective construction, illegal subcontracting, and insufficient capital.

The period of business suspension varies depending on the type and degree of the violation and may generally range from one to six months or longer.

Before seeking relief from a business suspension, you should first confirm whether the disposition was carried out lawfully.

It is important to review the specific content and grounds of the disposition and to consider its lawfulness and proportionality.

If there was any impropriety in the procedure of the disposition, an appeal should be filed within 90 days from the date on which the disposition became known.

To file the appeal, after thoroughly reviewing the legal grounds and reasons, you should clearly organize the legal analysis and the grounds for the appeal and prepare the application.

Administrative adjudication is a means of administrative relief that proceeds relatively quickly and simply.

An administrative adjudication must be filed within 90 days from the date of being notified that a disposition has been made.

A business operator can present its position through the submission of materials, pleadings, and similar means.

As a result of the adjudication, a ruling may be issued revoking the business suspension disposition or reducing the suspension period.

Because administrative adjudication carries a lower cost burden than litigation and produces results relatively quickly, many business operators tend to choose it first.

▶ Administrative Adjudication Procedure

1. Submission of the written request for adjudication

To file for administrative adjudication, you must first prepare and submit a document called a ‘written request for adjudication.’

This document may be filed with the agency that made the administrative disposition (for example, a district office, the respondent) or with the competent administrative adjudication commission.

When submitting the written request for adjudication, you must also submit copies (duplicates) equal to the number of respondents.

For example, if two agencies jointly made the disposition, you must submit two duplicates in addition to the original.

2. Submission of the respondent's written answer

Once the written request for adjudication is received, the administrative agency (the respondent) must prepare and submit a ‘written answer’ within 10 days.

This written answer is rebuttal material in response to the claimant's assertions, and it is a document explaining, from the administrative agency's standpoint, that the disposition was justified.

The written answer is submitted to the adjudication commission, and the commission also serves it on the claimant so that the claimant can learn the content of the disposition agency's assertions.

In addition, if the request for adjudication was filed online through the website of the Central Administrative Appeals Commission, the written answer can also be viewed online.

3. Referral of the case

The administrative agency must refer the request and the written answer to the administrative adjudication commission without delay.

This is a procedure intended to allow the commission to receive the case promptly and begin its examination.

4. Conduct of the examination

The administrative adjudication commission closely reviews the assertions of the claimant and the respondent on the referred case.

It then sets an ‘examination date’ to examine the assertions and evidence of both sides.

In this process, it determines whether the disposition was legally unlawful, or whether it was excessive or improper. When the examination is concluded, the commission organizes the result and sends it to both sides (the claimant and the disposition agency).

5. Ruling and notification of the result

The ‘ruling’ issued after the examination is the final determination of the administrative adjudication commission.

The commission prepares a written ruling and serves it on the claimant and the respondent, and in accordance with this written ruling, the result of revoking, reducing, or dismissing the disposition is finalized.

An important point is that the result of an administrative adjudication takes effect only when the written ruling is served.

In other words, the written ruling must actually arrive before it affects the validity of the disposition as set out in its content.

Administrative litigation is a procedure through which a stronger legal judgment can be obtained than through administrative adjudication.

It must be filed within 90 days from the date on which the disposition became known.

Through administrative litigation, the court judges whether the business suspension disposition is unlawful or void, and as a result, the disposition may be revoked or a judgment confirming its invalidity may be rendered.

One point to note, however, is that filing an administrative litigation does not automatically suspend the effect of the business suspension; the execution of the disposition is temporarily halted only when a separate ‘stay of execution’ is applied for.

Before proceeding with the procedure for relief from business suspension, it is advisable to apply for a stay of execution.

If the business suspension disposition is executed immediately, the business operator must cease business activities during the relief procedure period, which may cause serious economic loss.

A stay of execution is an important means of preventing such risk, and it can temporarily suspend the execution of the business suspension disposition.

The disposition can be temporarily suspended before the effect of the business suspension disposition arises, and this can allow a stable management environment to be maintained while the relief procedure is carried out.

At this point, the application must be based on a legal basis and sufficient materials, and if the application is approved, the effect of the business suspension disposition can be provisionally stayed.