2019Gohap219 Violation of the Food Sanitation Act

A

Kim Ho-young (Lawsuits) and Song-young (Trial)

May 24, 2019

A defendant shall be punished by imprisonment for six months.

However, the execution of the above punishment shall be suspended for two years from the date this judgment became final and conclusive.

The defendant shall be subject to probation and shall be ordered to provide community service for 80 hours.

Criminal 1)

【Criminal Power】

On January 16, 2018, the Defendant was sentenced to a fine of KRW 4 million as an offense of violating the Food Sanitation Act at the Seoul Central District Court.

【Criminal Facts】

Any person who intends to run a dan business shall obtain permission from the competent authority.

Nevertheless, at around January 30, 2019, 03:30, the Defendant, without obtaining permission from the competent authorities, provided sound and visual equipment such as studio 6 and each room with studio 1st underground of Seocho-gu Seoul Metropolitan Government, and sold alcoholic beverages worth KRW 10,000,00 in total, to customers D, who found studio 6 and each room. In selling alcoholic beverages worth KRW 60,00,00, the Defendant used the above sound and equipment.

As a result, the Defendant was sentenced to a crime of violating the Food Sanitation Act due to the business of danran tavern without permission, and was engaged in danran tavern business without permission within five years after the sentence becomes final and conclusive

Summary of Evidence

1. Partial statement of the defendant;

1. Written statements of D;

1. Report of investigation (examination of the offense committed by application and confirmation of the same criminal record), and report of the occurrence of the case;

1. On-site photographs and each business registration certificate;

1. Previous convictions: Criminal records, investigation reports (verification of the date of final convictions and the date of final convictions), and Seoul Central District Court Decision 2017 2542;

Application of Statutes

1. Article applicable to criminal facts;

Article 94(2) and (1)3 of the Food Sanitation Act and the main sentence of Article 37(1) of the Food Sanitation Act

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following consideration for the reasons for sentencing):

1. Suspension of execution;

Article 62(1) of the Criminal Act (The following grounds for sentencing has been repeatedly taken into consideration for favorable circumstances)

1. Probation and community service order;

Article 62-2 of the Criminal Act

Defendant’s argument and judgment

1. Summary of the defendant's assertion

The Defendant is not engaged in the entertainment business at the instant store, but operated a music video production room. Alcoholic beverages sold at the instant store are not sold at the “Crano Video production shop” but at the “E that reported the same place to the same place of business”, and thus, the Defendant did not have any awareness of illegality.

2. Determination

A. Determination as to the assertion on the operation of the music video production room

1) An entertainment business under Article 36 of the Food Sanitation Act and Article 21 subparag. 8 (c) of the Enforcement Decree of the Food Sanitation Act provide that, as a business of cooking and selling mainly alcoholic beverages, customers are allowed to singing, and Article 2 subparag. 8 of the Music Industry Promotion Act provides that "a music record and music video production business refers to a business of planning, producing, reproducing, or reproducing music records, music files, music video products, and music video files." Whether a business establishment is a music record and music video production facility or a music video product production facility shall be determined on the basis of the type of act and the substance of the business, such as the existence of a principal interest in the business.

2) In full view of the following circumstances acknowledged by the evidence duly adopted and examined by the court, i.e., ① the internal facilities and structure of the instant store was difficult to distinguish them from the usual danran bar, ② the Defendant sold alcoholic beverages and juices to customers in the instant store; ② the Defendant kept not only the cooling house but also the corridor and kept a large amount of alcoholic beverages in the beer and the corridor; ③ there is no evidence to acknowledge that the Defendant planned and produced a music record or music video product as alleged by the Defendant, the Defendant could sufficiently recognize that the instant store operated a danran bar (see, e.g., Supreme Court Decision 98Do3964, May 25, 199).

Therefore, this part of the defendant's argument is without merit.

B. Determination as to the assertion on sales of alcoholic beverages permitted

1) Article 16 of the Criminal Act provides that "the act of misunderstanding that one's own act does not constitute a crime under the laws and regulations shall not be punishable only when there is a justifiable ground for misunderstanding" does not mean a simple legal site, but it is the purport that it shall not be punishable if there is a justifiable ground for misunderstanding that one's act is not a crime under the laws and regulations in general, but it is recognized that it does not constitute a crime under the ordinary circumstances but does not constitute a crime under the special circumstances of one's own act, and that such misunderstanding is not punishable (see Supreme Court Decision 2005Do37

2) The following circumstances found by the evidence duly adopted and examined by the court of this case, i.e., ① there is no business classification for “E” inside the store of this case, and only a cooling room in which alcoholic beverages and drinks are kept (Evidence No. 12 pages). ② The Defendant, around June 20, 2017, knew on January 16, 2018 that the Seoul Central District Court sentenced the instant store to a fine of KRW 4 million for violating the Food Sanitation Act to sell alcoholic beverages and provide singing to customers without obtaining permission, and ③ the Defendant appears to have used the same alternative method for selling alcoholic beverages in the instant store of this case without any permission, and there is no justifiable reason to deem that the Defendant’s act was not erroneous.

Reasons for sentencing

1. Scope of applicable sentences under law: Six months to five years; and

2. Scope of recommendations according to the sentencing criteria;

No sentencing criteria shall be set.

3. Determination of sentence: Imprisonment with prison labor for six months, suspended sentence for two years, probation and community service order for 80 hours, taking into account the following circumstances, and taking into account the defendant's age, character and conduct, growth process, environment, motive, means and consequence of the crime, circumstances after the crime, etc., various sentencing factors specified in the arguments in this case shall be determined as ordered.

○ Unfavorable Conditions

Although the Defendant was sentenced to a fine for a violation of the Food Sanitation Act, the Defendant engaged in a danran business without permission at the same place within five years from the time the sentence becomes final and conclusive. The legislative intent of the revised Food Sanitation Act, which introduced the lowest sentence system, in order to eradicate repeated and intentional crimes, ought to be taken into account. In addition to the foregoing criminal power, the Defendant was sentenced to six times a fine for a violation of the Music Industry Promotion Act while operating a singing practice room in addition to the foregoing criminal power.

○ favorable circumstances

The facts of the instant crime are fully recognized by the Defendant, and there is no criminal record sentenced to the Defendant. It seems that the Defendant has no substantial economic benefits derived from the instant crime.

The presiding judge, judges and human rights

Judges Kim Gung-sung

Judges Kim Gon Line

1) Some of the facts charged were revised according to the facts obtained through the examination of evidence to the extent that the Defendant did not materially disadvantage the Defendant’s exercise of the right to defense.