영업시간 제한 및 의무휴업일 지정 규제의 대상이 되는 ‘대형마트로 등록된 대규모점포’의 요건에 관한 검토 - 대상판결: 대법원 2015. 11. 19. 선고 2015두295 전원합의체 판결 -

Abstract

Companies running large-scale discount stores appealed against business hour restrictions and mandatory holidays from local government officials after the amendment to the「Distribution Industry Development Act」on January 17, 2012, and the Supreme Court announced its full bench decision 2015두295 on November 19, 2015 that the measure to subject large-scale discount stores to business hour restrictions and mandatory holidays leveled by local government officials was legal. The controversial issue involving sharply opposing majority opinion, dissenting opinion, and concurring opinion surrounding the Supreme Court’s ruling was about the interpretation of the old 「Distribution Industry Development Act」 and its enforcement ordinance concerning the requirements of ‘large-scale stores registered as large-scale discount stores’ and whether the place of service provision within large-scale discount stores is subject to business hour restrictions and mandatory holidays. The system of the 「Distribution Industry Development Act」is confusing and its contents are unclear, incurring many problems, to the extent that the supreme court’s full bench decision was divided into a majority opinion, a dissenting opinion, and a concurring opinion. To solve such problems, legislation amendments are necessary that clarify concepts of the terms shop, store, and market in the「Distribution Industry Development Act」, that make the business status of large-scale stores more realistic and systematic, and include business regulations regarding business conditions, so that the controversy surrounding the place of service provision within large-scale discount stores can be fundamentally resolved. Also, regulating certain types of business in opposition to the legislation intent of the「Distribution Industry Development Act」obstructs the development and evolution of business conditions hampers the advancement of the distribution industry. Therefore, legislation must proceed in a direction that minimizes retail or business regulations. Ultimately, the regulation of large-scale stores including large-scale discount stores must transition to a legislation with ‘socially purposed regulations’ aiming at the protection of the environment and traffic, just as the legislation cases of advanced nations overseas rather than ‘economically purposed regulations’ aiming at protecting small-to-middle sized distribution businesses.