(영문) 대법원 2017.3.30.선고 2015도6355 판결

1. The summary of the facts charged in the instant case is as follows: from December 10, 201, the Defendant engaging in fishery products distribution business.

2. A satisfaction tube 2 from "F" located in Ulsan-gu, Ulsan-do, by possessing one motor vehicle for live fish transport from June 2013.

A restaurant, etc. in place of 20 in Ulsan, while keeping fishery products, such as luminous and lue, by leasing a dog.

annual average of 5,800 without meeting facility standards, such as transporting to wholesale and retail, and distributing to wholesale and retail;

The food transportation business was not reported while running the food transportation business of 10 million won.

I would like to say.

The court below held that fishery products, such as active fish, etc., are sold by the defendant at the request of the purchaser.

The transportation of water to a business operator under the proviso to Article 21 subparagraph 4 of the Enforcement Decree of the Food Sanitation Act shall be the place of business of the business operator.

Food transportation business is not subject to reporting because it falls under "to transport food for sale".

The judgment of the first instance that acquitted the defendant was affirmed.

The key issue of this case is whether the defendant's active fishing and other transportation activities of fishery products are subject to reporting of food transportation business.

The problem is whether fishery products, such as active fish, are food under the Food Sanitation Act.

shall be eligible.

2. First, we examine whether fishery products, such as active fish, constitute food.

(a) All foods and drinks (excluding foods and drinks taken as medicine) under Article 2 subparagraph 1 of the Food Sanitation Act;

‘natural food' as well as processed and cooked food is also included in food.

That being produced from nature (see, e.g., Supreme Court Decision 88Do2312, Jul. 11, 1989).

from any stage of products collected or caught to "food under the Food Sanitation Act as natural food."

whether it is reasonable or not shall prevent sanitary harm caused by food and contribute to the improvement of national health.

Food-related Acts and subordinate statutes, including the Food Sanitation Act to be sought, the language, contents and regulatory system, food

It is necessary to regulate food as food, such as sanitary monitoring on production, sale, transportation, etc., as well as our history;

It should be determined by comprehensively taking into account the common food habits or the concept of universal food(law).

Seoul High Court Decision 2016Do237 decided January 1, 2017

Detailed provisions on whether fishery products, such as active fish, are food from any stage under the Food Sanitation Act;

Although there is no provision of laws and regulations concerning food sanitation, the text, language and system, and the consciousness of our society.

In full view of the official or universal concept of food, fish taken and caught in the sea or on the river;

B. In principle, fishery products that can be used for food as birds may be used for food even before they are processed or cooked.

The conclusion that food should be seen as food can be derived. The reasons are as follows.

First, the Food Sanitation Act is all food other than medicine as above.

Since the concept of goods is very comprehensive, fishery products such as active fish are in principle food.

It should be viewed as "..."

Second, Article 21 (4) of the Enforcement Decree of the Food Sanitation Act is delegated by the Food Sanitation Act.

On the other hand, the fish and the birds are specified as the subject of food transportation business. This is the fish and the fish.

It is based on the premise that the lighting is food.

Third, Article 5 (1) of the Enforcement Rule of the Food Sanitation Act is a food even if used as a raw material.

under the premise that the fish and the fish are used as a raw material for food, and if the fish and the fish are used as a raw material for food

Before public or cooking, food shall be viewed as food.

Fourth, the Ministry of Food and Drug Safety established the standards and specifications of food pursuant to Article 7 (1) of the Food Sanitation Act.

The standards and specifications of the 'food' (which is contained before the food code), which is published, shall be fish, birds, etc.

The term "fishery products" is specified as fishery products, and the term has an explicit provision on active fishing since 2007, and is active

Fishery products such as food are considered to be included in food.

Fifth, if fishery products, such as active fish, are not considered to be food under the Food Sanitation Act, active fish, etc.

Since fishery products are excluded from the regulation of the Food Sanitation Act, they are under the sanitary surveillance of fishery products.

There is a concern that there is a gap.

Sixth, we can see our society's food habits, food culture, cooking technology, universal food concept, etc.

Fish and fish that can be used for food is the general concept that it is food.

The concept is supported by food-related laws and regulations, including the above food sanitation laws.

In addition to the factual dimension, it has been approved from a normative perspective.

B. Fishery products, such as luminous and Doll, transported by the Defendant in the instant case, are captured and consumed on the sea.

the food under the Food Sanitation Act, which is sold.

3. Whether the defendant's act of transporting fishery products, such as active fish, is subject to reporting under the Food Sanitation Act.

We examine the problem.

(a) A person who intends to run a business prescribed by Presidential Decree pursuant to the former part of Article 37 (4) of the Food Sanitation Act:

To report to the competent authorities by type of business or by place of business as prescribed by Ordinance of the Ministry of Education.

section 25(1)4 of the Enforcement Decree of the Food Sanitation Act, upon delegation, shall report the business.

Article 21 (4) refers to "food transportation business", which is one of the types of business that must be engaged in. Food transportation business

§ 21.4 of the Enforcement Decree of the Food Sanitation Act (hereinafter referred to as the "fungchisor") that can be directly consumed.

Food that is likely to be decomposed and changed, such as fish, birds, and products processed therefrom, shall be hygiene;

‘business of transport', and the proviso thereof shall be sold at the place of business of the businessman.

transportation for purposes of transportation, and transportation of foods manufactured or processed by the relevant business operator;

the Food Sanitation Act provides that food transportation business shall be reported in accordance with the Food Sanitation Act.

Matters shall be determined by the Ordinance of the Ministry of Food and Drug Safety, but excluded from business reports under the proviso of Article 21 (4)

The exception is specified.

According to the language, content, and regulatory system of the proviso of Article 21 subparag. 4 of the Enforcement Decree of the Food Sanitation Act.

The business operator who transports foods for the purpose of sale in the place of business of the relevant business operator.

(a) means the transport of food for sale at one’s own place of business;

In this regard, the process of selling food that is likely to be decomposed or changed by a business operator is to be considered.

not even if they are transported to the buyer. The food sale business and the food transport business shall not be deemed to include the case of transportation to the buyer.

Food for food sellers even if they are equipped with necessary facilities due to a change in facility standards for the counter-business;

to the extent that the food distributor is not equipped with necessary facilities as a carrier, and that the food distributor sells it at the place of business.

for the purpose of transporting food that is likely to be decomposed or changed and selling such food;

the degree of sanitary harm that may arise in the event of transportation to the purchaser is different;

In other words, it is reasonable to interpret it as above.

B. The Defendant is living in mountain products, such as luminous or lue, without reporting food transportation business.

20 An act of transporting while selling them to restaurants, etc. This Enforcement Decree of the Food Sanitation Act.

The business of transporting food that is liable to be decomposed or changed as provided for in the main sentence of Article 21(4);

Article 21 (4) (proviso) of the Enforcement Decree of the Food Sanitation Act, which provides for exceptions to reporting food transportation business;

It does not correspond to ‘transporting food for sale at the place of business of a businessman.'

Defendant’s business of selling fishery products, and continuous and repeated use of active transport vehicles;

for profit if the fishery products were transported, it would be deemed that the fishery products were sold and transported for profit.

Therefore, the defendant does not report food transportation business pursuant to Article 37 (4) of the Food Sanitation Act.

It is unlawful to conduct such an act without any justifiable reason.

4. Nevertheless, the lower court held that the Defendant’s act does not constitute reporting of food transportation business.

In light of the facts charged, the lower court acquitted the Defendant on the charges of this case.

In so determining, the lower court erred by misapprehending the legal doctrine on the interpretation of the Enforcement Decree of the Honorary Life Act.

The ground of appeal pointing this out is with merit.

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion.

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