(영문) 서울서부지방법원 2016. 12. 1. 선고 2016노749 판결[식품위생법위반][미간행]
Defendant
Prosecutor
Pursuant to the reasoning of the judgment, the court shall hold the office of appeal.
Attorney Kim Jong-hwan (Korean)
Seoul Western District Court Decision 2016 High Court Decision 470 Decided May 26, 2016
The judgment of the court below is reversed.
A defendant shall be punished by a fine of 500,000 won.
When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted into one day.
In order to order the provisional payment of an amount equivalent to the above fine.
1. Summary of grounds for appeal;
Even after the relevant summary order has become final and conclusive, the Defendant still engages in resting area business without reporting to the competent authority in Eunpyeong-gu Seoul ( Address omitted). Therefore, the Defendant may be found guilty through changes in indictment to the extent that it is recognized as identical to the facts charged.
2. Ex officio determination
A prosecutor applied for amendments to an indictment with the purport that “from January 20, 2015 to January 7, 2016” was changed from January 20, 2015 to “from January 20, 2016 to August 18, 2016,” and this court permitted the amendment, thereby changing the subject of the adjudication. Thus, the lower judgment cannot be maintained as it is.
3. Conclusion
Therefore, the judgment of the court below is reversed on the ground of ex officio reversal as seen above, and it is again decided as follows after pleading.
The Defendant is a person who works in a resting restaurant in the name of Eunpyeong-gu Seoul ( Address omitted) with "○○ Ordinance".
누구든지 휴게음식점 영업을 하려는 자는 관련 법령이 정하는 시설을 갖추고 관할관청에 신고하여야 한다. 그럼에도 불구하고 피고인은 영업신고를 하지 아니하고 2016. 1. 28.부터 2016. 8. 18.까지 위 ○○분식 약 7㎡ 규모의 영업장에 냉장고 1개, 긴 의자 1개, 플라스틱 의자 1개, 싱크대 1대, 음식대 1대 조리시설 일체를 갖추어 놓고 이름을 모르는 손님들을 상대로 떡볶이, 김밥, 어묵, 라면 등을 조리 판매하여 월 평균 200만 상당의 매출을 올리는 휴게음식점 영업행위를 하였다.
1. Statement by the defendant in court;
1. A statement on the preparation of the Nonindicted Party
1. A public property loan agreement;
1. Article relevant to the facts constituting an offense and the selection of punishment;
Item 1 of Article 97 and Article 37 (4) of the Food Sanitation Act (Selection of Fine)
1. Detention in a workhouse;
Articles 70(1) and 69(2) of the Criminal Act
1. Order of provisional payment;
Article 334(1) of the Criminal Procedure Act
The defendant has already been punished several times due to the violation of the Food Sanitation Act, the period of business, scale of the business of the non-reported resting restaurant in this case, the age, character and conduct, environment of the defendant, the circumstances and result of the crime of this case, and other factors of sentencing as shown in the arguments of this case shall be determined as ordered by considering the whole.
Judges Park Jong-dae (Presiding Judge)