[1] Criteria for permission for food business, which is publicly notified by the Minister of National Security, and the nature of the same conditions for permission

[2] Whether the whole quantity added to the permission for the manufacturing business of preserved drinking water is unconstitutional due to infringement of freedom of occupation under the conditions of export (Prohibition of domestic sales)

[3] The validity of the criteria for permission for food business, which is the notice of the Minister of Bolign, to impose the whole export condition at the time of permission for the business of manufacturing preserved drinking water

[4] The right to pursue happiness under the Constitution and the prohibition of domestic sale of preserved drinking water

[5] Whether a violation of the Constitution of the Republic of Korea violates the Food Sanitation Act

[1] The criteria for permission for food business (amended by the Ministry of Health and Welfare No. 85-17 of March 11, 1985 and the revised by the Ministry of Health and Welfare No. 87-44 of July 18, 1987) under Article 23-3 subparag. 4 (Article 24(1)4 of the former Food Sanitation Act (amended by Act No. 3823 of May 10, 1986) which granted the authority to designate a kind of business which cannot be permitted for reasons of public interest. Since it has the function to supplement the provisions of the Act, it has the nature of external binding order in combination with those of the Act. Thus, the whole export or sale of foreigners permitted for a manufacturing business of preserved drinking water in accordance with the standards for permission stipulated in the above notice is based on the original meaning of administrative act by the so-called government officer, which is not based on the original purport of the administrative agency's decision, and thus, it cannot be deemed that the general provisions of the Act are effective for the above administrative act of violation.

[2] The closure of almost almost almost most of the potential sales markets by prohibiting the sale of preserved beverages in Korea is a serious limitation on the freedom of business, and the restriction on the freedom of business does not recognize any exception in any case by completely prohibiting domestic sales. As such, the degree of such restriction is absolute, and thus, seriously restricting the freedom of business.

[3] In light of the purpose of the Food Sanitation Act, the Minister of Health and Welfare issued a public notice that limits the freedom of occupation of a person who is licensed to engage in a business of manufacturing preserved drinking water pursuant to Article 23-3 subparagraph 4 of the former Food Sanitation Act (amended by Act No. 3823 of May 10, 1986) and Article 24 (1) subparagraph 4 of the current Food Sanitation Act, which limits the freedom of occupation of a person who is licensed to engage in a business of manufacturing preserved drinking water, shall not be deemed to be essential and reasonable

[4] The right to pursue happiness is one of the most fundamental means of pursuing human happiness to allow humans to freely choose food to drink or drink that they want to drink. If the public purpose of preventing the citizens' apprehensions about tap water and the result of restricting the people's right to pursue happiness is compared to the limitation of the people's right to pursue happiness, the right to pursue happiness is restricted or infringed, and it is not permitted to prohibit the sale of drinking water in Korea.

[5] The above notice prohibiting manufacturers who obtained permission for the business of manufacturing preserved drinking water from selling preserved drinking water to the national is in violation of the right to freedom of occupation guaranteed by the Constitution and the right to pursue happiness of the people, and thus is null and void as it violates the Constitution. Thus, the above condition of permission (legal government officials) whose contents are the notice also should be null and void, so even if they sold preserved drinking water to the national in violation of this provision, it does not constitute Article 77

[1] Article 24(1)4 of the Food Sanitation Act, Article 23(2), Article 23-4 of the former Food Sanitation Act (amended by Act No. 3823, May 10, 198); Article 22(2) of the former Food Sanitation Act (amended by Act No. 4071, Dec. 31, 198); Article 1 subparag. 6 and Article 2 subparag. 4 of the former Food Sanitation Act (amended by Act No. 85-17, Mar. 11, 1985); Article 8 subparag. 4 of the former Food Sanitation Act (amended by Act No. 475, Jul. 18, 1987); Article 1 subparag. 6 and Article 2 subparag. 4 of the former Food Sanitation Act (amended by Act No. 874, Jul. 18, 1987); Article 8-1 of the former Food Sanitation Act (amended by Act No. 475, Mar. 17, 20196>

[1] [1] [2] [3/4] Supreme Court Decision 92Nu1728 delivered on March 8, 1994 (Gong1994Sang, 1195) / [1] Supreme Court Decision 86Nu484 delivered on September 29, 1987 (Gong1987, 1668) 87Nu1028 delivered on May 10, 198 (Gong198, 959)

Defendant 1 and six others

Defendants

Law Firm, Pacific, Attorneys Kim In-con et al.

Seoul Criminal Court Decision 90No2620 delivered on January 28, 1992

The judgment of the court below is reversed, and the case is remanded to Seoul District Court Panel Division.

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, the court below held that the right to pursue happiness, consumer choice, right to equality, and right to freedom of business, which are fundamental rights of the people asserted by defense counsel, are not limited to cases necessary for national security, maintenance of order, or public welfare under Article 37(2) of the Constitution, and thus, it may be limited by law unless it infringes on the essential contents of freedom and right. The necessity to regulate the sale of preserved drinking water (e.g., increase in in the influence of ordinary tap water, the difficulties in the administration of supplying drinking water, and the creation of a garrament among the class) of drinking water, such as this case, is more important than the benefits that can be gained by permitting it, and further, the method of drinking water from clean drinking water can be possible by using natural medicinal water, so long as it is in nature infringed upon the fundamental rights of the people as argued by defense counsel, or it does not seem to have any legal basis, and even if it deviates from the limit of imposing additional pipes, the court below held the defendants guilty that all of sale and export of drinking water produced in Korea.

2. The direct basis of permission to conduct the manufacturing business of drinking water in this case is Defendant 2 Co., Ltd. (Representative Director 3), Defendant 4, and Defendant 5 Co., Ltd. (the representative director as to Defendant 1 was amended by Act No. 3823, May 10, 1986) and Article 22(2) of the former Food Sanitation Act (amended by Act No. 4071, Dec. 31, 1988; the representative director as to Defendant 6 Co., Ltd. (the representative director Kim No. 3823, May 10, 198; the representative director as to Defendant 6 Co., Ltd.). However, the contents of the above conditions are substantially the same as that of Defendant 2, Defendant 4, and Defendant 5 Co., Ltd., Ltd., Ltd. (the revised by Act No. 85-17, Mar. 11, 1985; Article 28 subparag. 2 of the Addenda of the Public Notice). 7, etc.

However, the above notice is issued by the Minister of Health and Welfare pursuant to subparagraph 4 of Article 23-3 of the former Food Sanitation Act (amended by Act No. 4071 of Dec. 31, 1988) that grants the authority to designate a kind of business that cannot be permitted for the reason of public interest. Since the above notice has the function to supplement the contents of the law in substance and it has the nature of an external binding legal order in combination with it, the condition that only the whole export or sale to foreigners in Korea attached to the permission for the business of manufacturing preserved drinking water according to the permission standards as stipulated in the above notice is not an assistant to administrative act within the original meaning of the administrative agency as a so-called legal officer. Accordingly, while the general principle on the limit to which a deputy officer may be attached to the above legal officer's administrative act is not applied to the above legal officer, the above notice is an infringement of fundamental rights guaranteed by the Constitution, and it is no longer effective if it is in violation of the Constitution (see Supreme Court Decision 201Nu8278, Mar. 28, 1994).

Therefore, most of the potential sales markets are closed by prohibiting the sale of health stand and preserved drinking water in Korea with respect to whether such notice is in violation of the Constitution. Since the restriction of freedom of business is a serious restriction on freedom of business, it does not recognize any exception in any case by completely prohibiting domestic sales. Therefore, the degree of such restriction is absolute, and thus, it cannot be said that the restriction is seriously restricting freedom of occupation.

However, the court below's explanation that it is necessary to regulate the sale of preserved drinking water to nationals is not a proper purpose to regulate the sale of preserved drinking water in itself, unless there are special circumstances such as that it causes social anxiety, and therefore, it does not constitute a justifiable purpose to regulate the sale of preserved drinking water in itself. Thus, the prevention of garment cannot be viewed as a justifiable purpose to restrict the domestic sale of preserved drinking water. The citizen's anxiety about tap water and the difficulties in administration of the supply of drinking water thereby lead to the citizen's failure to believe the quality of tap water. Thus, it is not recognized that there is a relationship between the domestic sale of preserved drinking water and the administrative difficulties in the supply of drinking water, but it is recognized that there is a relation between domestic sale of preserved drinking water and the citizens' apprehension about drinking water. However, even if it is acknowledged that there is a strong restriction on the freedom of occupation of the persons who obtained permission for the manufacturing business to sell preserved drinking water to foreigners in Korea, and it is questionable that it is necessary and appropriate to prevent the sale of drinking water from infringing the fundamental rights of the people in Korea.

In addition, even in light of the purpose of the Food Sanitation Act (Article 1), the Minister of Health and Welfare issued a public notice that restricts the freedom of occupation of a person who is licensed to engage in the business of manufacturing preserved drinking water pursuant to Article 23-3 subparagraph 4 of the former Food Sanitation Act (amended by Act No. 3823 of May 10, 1986) and Article 24 (1) subparagraph 4 of the current Food Sanitation Act, it cannot be deemed that it is essential and reasonable for the maintenance of order or public welfare. Thus, the above public notice is invalid (see Supreme Court Decision 92Nu1728, March 8, 1994).

In addition, the right to pursue happiness is one of the most fundamental means of pursuing happiness as human beings to freely choose food and drinking water that humans want to drink. If the public purpose of preventing the citizens' apprehensions about drinking water and the result of restricting the people's right to pursue happiness is compared to the limitation of the people's right to pursue happiness, it is more likely that the right to pursue happiness is restricted or infringed on the people's right to pursue happiness, and it is not allowed to prohibit the sale in Korea of preserved drinking water in this respect (see Supreme Court Decision 92Nu1728 delivered on March 8, 194).

Therefore, the above notice prohibiting the Defendants, who obtained permission for the business of manufacturing preserved drinking water, from selling preserved drinking water to the national, is in violation of the right to freedom of occupation and the right to pursue happiness guaranteed by the Constitution, and thus null and void as it violates the Constitution. Thus, the above condition of permission (legal government officers) whose contents are the above notice shall also be null and void. Thus, even if they sold preserved drinking water to the national in violation of Article 77 subparagraph 3 of

3. Therefore, the court below held that the defendants' act constitutes the above Article of the law, unlike the above opinion, is erroneous in the misapprehension of legal principles as to the freedom of occupation and the right to pursue happiness, and therefore, it is reasonable to point this out.

Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jae-soo (Presiding Justice)