[2] The case holding that in a case where the defendant did not report on succession to the status of a business operator within one month while he/she was engaged in the entire business facilities and was prosecuted for violating the former Food Sanitation Act, the case holding that the defendant does not constitute a case where he/she succeeded to the status of a business operator under Article 39 (1) of the same

[2] In a case where the Defendant was indicted on charges of violation of the former Food Sanitation Act (amended by Act No. 932, Jan. 18, 2010) by failing to report the succession of the business status within one month while he/she was operating the entire business facilities of a discount line store, the case holding that the Defendant did not constitute a case where the Defendant succeeded to the status of a business operator under Article 39(1) of the same Act as long as he/she acquired the business by acquiring the business from the owner of a building after leasing a store and completing a business report, and the business transfer contract between A and B, which entered into a business transfer contract by deceiving A and concluded a business transfer contract by deceiving B, should be deemed to have been cancelled for deception before the implementation thereof was completed, and thus, it cannot be deemed that the Defendant was the person who succeeded to the status of the business operator by taking over the business from the owner of the building, and on the other hand, it does not seem that the Defendant transferred the business to the Defendant by taking over the business as a business operator.

Article 39 of the former Food Sanitation Act (amended by Act No. 932, Jan. 18, 2010; hereinafter “former Act”) provides that where a business operator transfers his/her business, the transferee shall succeed to the status of the business operator. Paragraph (3) provides that a person who succeeds to the status of the business operator pursuant to paragraph (1) shall report the fact to the competent authority within one month as prescribed by Ordinance of the Ministry for Health, Welfare and Family Affairs. The act of the permitting agency accepting the succession of the status pursuant to the above transfer of business is not merely the act of simply accepting the report that the transferee succeeds to the business through the legal effect of the transfer of business that occurred between the transferor and the transferee, but also the act of establishing a business license of the transferor and establishing a right to lawfully conduct the business, and thus, it is deemed that the transferor has a functional effect on the transfer of business (see Supreme Court Decisions 200Do2165, Oct. 25, 196; 200Do25, supra. 2009).

According to the reasoning of the judgment of the court below and the records, the non-indicted 1, the non-indicted 2, on October 207, after the non-indicted 2's sale and purchase of the above 40 billion won, the non-indicted 2, the non-indicted 3, the non-indicted 2, the non-indicted 3, the non-indicted 4, the non-indicted 2, the non-indicted 2, the non-indicted 3, the non-indicted 2, the non-indicted 2, the non-indicted 3, the non-indicted 2, the non-indicted 3, the non-indicted 4, the non-indicted 2, the non-indicted 9, the non-indicted 2, the non-indicted 3, the non-indicted 2, the non-indicted 3, the non-indicted 9, the non-indicted 2, the non-indicted 3, the non-indicted 9, the non-indicted 1, the non-indicted 2, the non-indicted 3, the non-indicted 1, the non-indicted 50000 million won.

According to the above facts, the transfer contract for the business of this case between Nonindicted 1 and Nonindicted 3 shall be deemed to have been cancelled before the implementation thereof was completed and retroactively invalidated.

Examining this in light of the aforementioned legal principles, Nonindicted 3 cannot be deemed as a person who succeeded to the status of a business operator by taking over the business from Nonindicted 1 pursuant to Article 39(1) of the former Act, and there is no reason to deem otherwise that Nonindicted 3 or Nonindicted 4 acquired the business of the instant store from Nonindicted 4, who is not a business operator, even if the Defendant acquired the business of the instant store from Nonindicted 4, it cannot be deemed as a case where he succeeded to the status of a business operator pursuant to Article 39(1) of the former Act.

Therefore, the facts charged in this case premised on the fact that the defendant succeeded to the status of a business operator under Article 39 (1) of the former Act is not a crime or there is no proof of a crime.

Ultimately, the judgment of the court below that acquitted the defendant is not appropriate for its reasons, but is just in its conclusion, and there is no violation of the rules of evidence or misapprehension of legal principles which affected the conclusion of the judgment, as otherwise alleged in the grounds of appeal.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young (Presiding Justice)