Plaintiff (Law Firm LLC, Attorneys Lee Jae-chul et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 201Na11446 delivered on May 2, 201

March 15, 2019

Suwon District Court Decision 2017Guhap12532 Decided September 20, 2018

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The corrective order issued by the Defendant against the Plaintiff on May 2, 2017 shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Details of the disposition;

A. On March 5, 1972, Nonparty 1 obtained a business license (hereinafter “instant business license”) with the name of the business office “○○○,” the location of the business from the Defendant as “○○○,” and the type of business as “general restaurants” (hereinafter “instant business license”). Nonparty 1 was not included in the items stated in the application for the permission at the time (the business license system for general restaurants was changed into the business report system on July 3, 1981, and the business report system on April 13, 1984, and the business report system again on November 13, 199).

B. On December 2015, the Plaintiff acquired the instant business from Nonparty 1, and filed a business report with the Defendant on December 10, 2015, changing the name of the business entity to “△△△△”. On May 12, 2016, the Plaintiff reported the business of changing the name of the business entity to “△△△△△△” to the Defendant. Nonparty 1 and the Plaintiff did not have any reported to the Defendant on the area of the instant business site. Upon accepting each of the instant reports, the Defendant issued each business report, the area of the business site was vacant.

C. On May 2, 2017, the Defendant issued a corrective order to correct the violation on the ground that the Plaintiff failed to report it to the Defendant, even though the area of the instant business site was arbitrarily expanded, thereby violating Article 37(4) of the Food Sanitation Act (hereinafter “instant disposition”).

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 2, 5, 7, 11, Eul evidence Nos. 2 and 4, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

1) The plaintiff's assertion

The latter part of Article 37(4) of the Food Sanitation Act provides that a report shall be filed with the competent administrative agency on any change in the important matters prescribed by Presidential Decree among the “reported matters”. However, at the time of the instant business permission, the area of the place of business was not stated in the application for permission, and thus, Nonparty 1 did not state the area of the place of business, and the items of the instant business permission did not include the area of the place of business, and thereafter, Nonparty 1 and the Plaintiff did not report the area of the instant place of business to the Defendant only once until then. Ultimately, even if the area of the instant place of business was changed because Nonparty 1 or the Plaintiff did not report to the Defendant under the latter part of Article 37(4) of the Food Sanitation Act, the instant disposition was unlawful on the ground that the Plaintiff violated the duty to report under the latter part of Article 37(4) of the Food Sanitation Act

2) The defendant's assertion

Article 23(1) of the former Food Sanitation Act (amended by Act No. 2971, Dec. 31, 1976; hereinafter “the Food Sanitation Act”) which was enforced on March 5, 1972, which was the date of business permission of this case, and Article 12(1) of the former Enforcement Decree of the Food Sanitation Act (amended by Presidential Decree No. 6714, Jun. 23, 1973; hereinafter “Enforcement Decree of the Food Sanitation Act”) which was enforced on March 5, 1972, as long as the area of the business of this case can be specified through data such as floor plan attached to the application for permission of the Food Sanitation Act (hereinafter “the Enforcement Decree of the Food Sanitation Act”), the area of the business of this case shall also be included in the “reported matters” under the latter part of Article 37(4) of the Food Sanitation Act (amended by Act No. 2971, Dec. 31, 1976; hereinafter “the Food Sanitation Act”).

However, the non-party 1 did not change the area of the above place of business after the permission of this case was granted, and the plaintiff, his successor, also changed the area of the above place of business. Thus, the plaintiff did not perform it despite the duty to report the change to the defendant pursuant to the latter part of Article 37 (4) of the Food Sanitation Act.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) At the time of Nonparty 1’s permission for this case’s business, the size on the building ledger of the building on the 1st floor above the second floor on which the location of the instant place of business was indicated as the location of the instant place of business was 28.80 meters. Nonparty 1, around November, 1998, removed the building above and constructed the building on the 1st floor on the 1st floor on the 1998 site. On July 1, 1999, the total floor area was 149.22 meters (=9.6 meters of 1st floor + 49.56 meters of 2nd floor).

2) In such circumstances, the Plaintiff acquired the instant business from Nonparty 1. Nonparty 2’s husband Nonparty 2, around May 13, 2016, constructed a building with a total of 140.75 meters of square meters of the second floor on the ground in the place where the said building was located (i.e., a square of square of 80.33 meters of the first floor + 60.42 meters of the second floor), and had the Plaintiff operate the instant business at the said new building.

3) On March 16, 2017, the Plaintiff reported to the Defendant the business of changing the area of the business from “149.22m to “140.75m of square meters” to “140.75m of square meters,” and the Defendant did not accept the said report.

[Reasons for Recognition] Unsatisfy, Gap evidence 12, Eul evidence 3, the purport of the whole pleadings

D. Determination

1) The administrative laws and regulations, which form the basis for an indivative administrative disposition that causes disadvantages to the other party to the disposition, must be strictly interpreted and applied as in the case of penal laws and regulations, and shall not be excessively expanded or analogically interpreted in the direction unfavorable to the other party to the administrative disposition. Even if the teleological interpretation that takes into account the legislative intent, purpose, etc. is not entirely excluded, such interpretation shall not go beyond the ordinary meaning of the language and text (see, e.g., Supreme Court Decisions 2007Du13791, 13807, Feb. 28, 2008; 201Du3388, Dec. 12, 2013).

The disposition of this case is a corrective order issued pursuant to Article 71 (1) of the Food Sanitation Act on the ground that the plaintiff violated Article 37 (4) of the same Act, and constitutes an aggressive administrative disposition. The above violation is not only a business license or registration revoked pursuant to Article 75 (1) 7 of the same Act, a business suspension for not more than six months, but also a fine not exceeding 30 million won pursuant to Article 97 (1) 1 of the same Act. (However, it seems that the defendant did not file a criminal complaint against the plaintiff in relation to the above violation). In determining whether the plaintiff violated Article 37 (4) of the Food Sanitation Act, the pertinent provision should be strictly interpreted and applied, and it should not be excessively interpreted or analogically interpreted to the extent unfavorable to the plaintiff.

2) In light of the aforementioned legal principles, comprehensively taking account of the following circumstances revealed in light of the health team, the contents of the relevant provisions of the relevant statutes, the facts of recognition, and the written evidence Nos. 2 and 5, and the purport of the entire pleading No. 2, as to the instant case, it is difficult to deem that Nonparty 1, who had been engaged in business without reporting the area of the place of business before the enforcement of the provisions on the obligation to report the alteration thereof, and the Plaintiff’s successor, who had been engaged in business without reporting the area of the place of business, is liable to report the alteration of the

In other words, Article 37 (4) of the Food Sanitation Act provides that "a person who intends to engage in a business prescribed by Presidential Decree among the businesses under each subparagraph of Article 36 (1) shall report to the Minister of Food and Drug Safety or to the Special Self-Governing City Mayor, Special Self-Governing Province Governor, or the head of a Si/Gun/Gu by type of business or place of business, as prescribed by Presidential Decree. The same shall also apply to the modification or discontinuance of a business prescribed by Presidential Decree among the reported matters." Article 26 (4) of the Enforcement Decree of the same Act provides that "the area of a place of business" is "the area of a place of business" as one of the matters to be reported when changing the reported matters pursuant to the latter part of Article 37 (4)

② However, Article 23(1) of the Food Sanitation Act of 1972 and Article 12(1) of the Enforcement Decree of the Food Sanitation Act of 1972, which was enforced by Nonparty 1 when the pertinent business permission was granted, stipulate that a person who intends to obtain business permission shall submit an application stating the applicant’s address and name (in the case of a corporation, its name, location, and the name of its representative), “2. place of business”, “3. place of business or trade name”, “4. type and item of business,” “5. business facility outline and floor plan,” and “5.” Accordingly, Nonparty 1 appears to have obtained the instant business permission without stating the area of the place of business in the application for the instant business permission, and until now, the area of the instant place of business is not stated in the business report certificate or the business report register.

③ Meanwhile, Article 13-2(3) of the former Enforcement Decree of the Food Sanitation Act (amended by Presidential Decree No. 21676, Aug. 6, 2009; hereinafter “Enforcement Rule of the Food Sanitation Act”) began to impose the obligation to report the size of a place of business and the change thereof as referred to in the latter part of Article 37(4) of the current Food Sanitation Act and Article 26 subparag. 4 of the Enforcement Decree of the same Act is deemed to have been newly established, and the business report form in attached Form No. 25 of the former Enforcement Rule of the Food Sanitation Act (amended by Presidential Decree No. 264, Dec. 27, 2003; hereinafter “Enforcement Rule of the Food Sanitation Act”) added the “area of a place of business” to the business report form, and Article 17971 of the former Enforcement Rule of the Food Sanitation Act (amended by Presidential Decree No. 21676, Apr. 22, 2003; hereinafter “Enforcement Rule of the Food Sanitation Act”) and the Food Sanitation Act does not apply the business report form.

④ As to this, the Defendant alleged that the instant place of business is included in “reported matters” as provided by the latter part of Article 37(4) of the Food Sanitation Act, insofar as the area of the instant place of business can be specified through data, such as floor plans attached to the time of the instant application for business permission, the Defendant’s interpretation that the instant place of business is included in “reported matters” as stated by the latter part of Article 37(4) of the same Act is beyond the ordinary meaning of the language and text, even if the data submitted at the time of the instant application for business permission were not sufficient evidence to acknowledge that the area

⑤ In addition, the Defendant asserts that Nonparty 1’s interpretation that, prior to the enforcement of the Enforcement Decree of the Food Sanitation Act in 2003 and the Enforcement Rule of the Food Sanitation Act in 2003, it is possible for the Plaintiff to change the area without filing a report even after the enforcement of each of the above provisions on the grounds that Nonparty 1 had been engaged in business without filing a report on the area of the place of business, and the Plaintiff succeeded to the status of the business operator, would be contrary to the purport of the Food Sanitation Act, which forces a business report and prohibits a unreported business, and that such interpretation would also contravene the purport of designating a water source protection

However, even if the above business was operated without reporting the business area before the enforcement date of the Enforcement Decree of the Food Sanitation Act in 2003 and the Enforcement Rule of 2003, there is no legal ground to acknowledge the obligation to report the alteration of the business area under the latter part of Article 37 (4) of the Food Sanitation Act. Nevertheless, if it is necessary to impose the obligation to report the alteration of the business area under the latter part of Article 37 (4) of the Food Sanitation Act even in the above case, it is difficult to view the above separate business area solely on the ground that the business area in this case is located in water-source protection area. Furthermore, the Plaintiff appears to have lawfully obtained the business license by stating the name and location of the business establishment in accordance with the relevant Acts and subordinate statutes at the time of obtaining the business license in this case, and the Plaintiff also received the business report after acquiring the business of this case from Nonparty 1 and issued a certificate of alteration, and the Plaintiff can not be deemed to have reported the alteration of the business area in this case’s name and the size of the business area in this case.

3) Therefore, the instant disposition taken on a different premise is unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judge Han Chang-hun (Presiding Judge)

1) The Defendant asserts that, at the time of business permission, a report on the alteration of the area of a place of business shall be made with a size of 140.75 square meters as of the present place of business, and that the report filed by the Plaintiff cannot be deemed as having fulfilled the duty to report the alteration of the area of the place

2) On the second day for pleading of the first instance court, the Defendant’s litigation performer stated that “There is no transitional provision or law basis, but there is a justification for regulating the instant business site as a water source protection area,” and that he did not have any legitimate ground under the law.