○○○○ convalescent was supplied with food materials by Nonindicted Co. 2 (hereinafter “Nonindicted Co. 2”) operated by Nonindicted Co. 1, and did not entrust the operation of the restaurant, and directly operated the restaurant at the hospital. Since a restaurant dietitian and a cook are employees of the hospital employed by the hospital, there was no direct charge, a dietitian, a cook’s surcharge, a cook’s surcharge, and a selective group surcharge claim.

2. Summary of the facts charged

Around March 3, 2008, the Defendant opened and operated the Eunpyeong-gu Seoul Metropolitan Government ( Address omitted), and concluded a contract for food materials supply with Nonindicted 1, the representative director of Nonindicted Co. 2 (hereinafter “Nonindicted Co. 2”) through Nonindicted 3, the office of the ○○○ Hospital, through the vice president, who was under his control, and agreed to bear the salaries of employees, such as dietitians and cooks, who are in the jurisdiction of the ○○○ Hospital.

Accordingly, Nonindicted Party 1 received reports on the salaries of employees belonging to the ○○○ Hospital cafeteria and the expenses for the operation of the cafeteria, and received employee education separately from Nonindicted Company 2, paid the expenses for the management of the cafeteria to employees, etc., or paid incentives to employees, etc. formally within the ○○○ Hospital, but considering the aspects of wages, management, etc., it cannot be deemed that the employee actually belongs to the ○○○ Hospital. Despite the fact that the cafeteria of the ○○○○ Hospital cafeteria was operated in the form of consignment operation, not directly operated by the cafeteria at the ○○○ Hospital on March 2008, the Defendant received 54,960 won from the victim’s bank account in the name of the Defendant.

Accordingly, the Defendant, as seen above, received a total of 425,131,630 won from March 2008 to January 2012, 201, including the transfer of KRW 54,960 as a food surcharge, by deceiving the victim as above, and received a transfer of KRW 425,131,630 in total from March 208 to January 201.

3. Determination

In cases where a medical care institution directly operates a cafeteria, the purpose of the system that allows the medical care institution to pay a dietitian, additional cook, cook, and selective group additional dues according to the existence and number of cooks under the direct management of the medical care institution is to compensate for the anticipated human resources and facility management difficulties in cases of direct management, and for the additional expenses due to the increased cost compared to the operation of the entrusted enterprise. Therefore, even if a dietitian and cook appears to belong to the hospital, which is a medical care institution, if they are operated by the entrusted method, it is difficult to deem that the above additional charges meet the requirements for claiming the above additional charges. In full view of the following circumstances acknowledged by the evidence duly adopted and investigated at the original judgment and the court, the ○○○○○○ Hospital entrusted the operation of the cafeteria to the non-indicted 2 company, and it is apparent that the non-indicted 2 company operated the cafeteria while actually directing and supervising the cafeteria, the head of the above hospital, the head of which was the above hospital, was a direct management of the cafeteria, so there is no error in the judgment of mistake of facts.

A. The contract for the supply of food materials concluded between a hospital and a non-indicted 2 constitutes an entrustment contract on the operation of a restaurant, notwithstanding its title. In other words, the contents of the contract are to supply food materials to a hospital by the non-indicted 2, but the price of supplied goods is to be determined as KRW 3,300, and KRW 2,000, which is to be the total food per month multiplied by the total food for the first month, and the total amount of the supplied goods is to be determined by the non-indicted 2, and all the management expenses, such as the cafeteria, the cafeteria, the cook, and the cook, the amount of the 4th insurance premium for the cook, the amount of the benefits including the retirement allowance, the amount of the wages including the retirement allowance, the water heat, the electricity cost, and the cost of consumed goods, etc., are to be borne by the non-indicted 2, and the hospital pays the total amount of the food expenses to the non-indicted 2

However, Nonindicted Co. 2 did not directly supply food materials to the hospital, the head of the hospital nutrition office under the direction and supervision of Nonindicted Co. 2 prepared a food group, and directly ordered food materials suppliers, such as CJ, and ordered the food materials supply business, and the price was paid by Nonindicted Co. 2 to the supplier.

In the end, Nonindicted Company 2 received not the cost of supply of food materials from a hospital, but the total food amount (this refers to the gross sales of Nonindicted Company 2 from the business management perspective) and received them as operating income (including cases where the total food cost is less than the total cost), or made business losses (including cases where the total food cost is less than the total cost), and subsequently, the profits and losses from the management of a cafeteria were immediately attributed to Nonindicted Company 2. Since the hospital did not bear any cost incurred in the management of the cafeteria and paid all the proceeds therefrom to Nonindicted Company 2 without any direct influence on the result of the management of the cafeteria, it acquired only additional charges such as direct additional charges, etc. from the victim.

B. In light of the fact that Nonindicted Company 2 was directly notified of the salaries of employees belonging to the hospital’s cafeterias each month from the hospital’s office, the status of the employee’s leave of absence, etc. through the head of the dietitians office, etc., received incentives to employees, provided training for employees, managed matters concerning personnel and labor, etc., and received reports from the head of the nutrition office, etc. and paid expenses directly to employees, etc., it is reasonable to view that the employees of the cafeterias are formally belonging to the hospital. It is reasonable to view that Nonindicted Company 2 received wages from Nonindicted Company 2, who actually received wages from the hospital, and worked in accordance with the direction and supervision thereof (as alleged by the Defendant, the staff of the cafeterias such as dietitians, etc. was affiliated with the hospital, and Nonindicted Company 2 did not take part in the management, and did not explain whether Nonindicted Company 2 received food materials from the Do non-indicted 2’s office on the ground of the replacement for food materials from the hospital).

4. Conclusion

Therefore, the defendant's appeal is without merit and it is so decided as per Disposition in accordance with Article 364 (4) of the Criminal Procedure Act.

Judges Han Young-jin (Presiding Judge)

1) The Defendant asserts that the total food cost is the cost of food materials, personnel expenses, management expenses, etc., and that the remainder after deducting personnel expenses and management expenses is the cost of food materials, and that the hospital pays it to Nonindicted Company 2 and the cost of food materials is the same as the actual cost. However, the sum of the cost of food materials, personnel expenses, and management expenses is the total cost of food materials, not the total sales.