Defendant

Defendant

decoration;

Law Firm Jin-Myeon, Attorney Sung-soo

Incheon District Court Decision 2010Gohap1666 Decided December 3, 2010

The judgment of the court below is reversed.

The defendant shall be innocent.

1. Summary of grounds for appeal;

The Defendant did not report succession to the status of a business operator since he was not succeeded to the status of the existing business operator, and the previous business operator’s business report still exists, and the Defendant could not report his succession to the status of the business operator on his own. In so determining, the lower court erred by misapprehending the legal doctrine

2. The facts charged in this case

The Defendant is a person who runs other food sales business, the trade name of “○○○ Mamart” in the Dong-gu Incheon Metropolitan City (number omitted). A person who succeeds to the status of a business operator must report such fact to the competent authority within one month. Nevertheless, on November 4, 2009, the Defendant acquired the entire business facilities of “○○ Mamart” and changed the signboard to △△ Mamart, but did not report the succession to the status of the business operator within one month thereafter.

3. The judgment of the court below

The lower court found the Defendant guilty by adopting as evidence a partial statement of the Defendant, a police interrogation protocol against the Defendant, a report on detection of the offender of the Food Sanitation Act, a written confirmation, and other food sales business report register.

4. Judgment of the court below

(a) Facts of recognition;

The record reveals the following facts.

1) On October 2007, Nonindicted Party 1 leased from Nonindicted Party 2 a ○○○○ Mamart (number omitted) located in the Dong-gu Incheon Metropolitan City (hereinafter “instant store”). Around December 2007, Nonindicted Party 1 reported the business of selling other food and began the business (the investigative record No. 10, 34 pages).

2) Although Nonindicted Party 1 transferred to Nonindicted 3 all the business including the right to lease with respect to the instant store, on March 19, 2009, he/she sought cancellation of the business transfer agreement on the said store on the grounds of deception made to Nonindicted 3, and in relation thereto, Nonindicted 3 was convicted of being guilty of fraud, and the said judgment became final and conclusive [The Incheon District Court Decision 2010No385,403, 814 (Merger), 34, 7, 9 of the investigation records].

3) Meanwhile, Nonindicted 3 transferred to Nonindicted 4, and Nonindicted 4 transferred to the Defendant all the business including the right of lease regarding the instant store in the order of priority (Article 24, 34 of the Investigation Records).

4) However, on October 21, 2009, Nonindicted Party 2, the first lessor of the instant store, terminated the lease contract on the grounds that Nonindicted Party 1 transferred the right of lease to the instant store without Nonindicted Party 2’s consent. The Defendant, who was occupied by the former lessee of the instant store, demanded the said store to be transferred (the trial record No. 34 through 37 pages).

5) On October 29, 2009, the Defendant re-leased the instant store from Nonindicted 2 to run the business at the said store from November 4, 2009, and Nonindicted 1’s business report still remains (Evidence 2, 10, 30 pages of the investigation record).

(b) duty to report and procedures;

Article 97 Subparag. 1 of the Food Sanitation Act (amended by Act No. 932, Jan. 18, 2010; hereinafter “the Act”) provides that a person who violates Article 39(3) of the Act shall be punished by imprisonment with prison labor for not more than three years or by a fine not exceeding 30 million won. Article 39(3) of the Act provides that a person who succeeds to the status of a business operator pursuant to Article 39(1) of the Act shall report the fact within one month, and Article 39(1) of the Act provides that a person who succeeds to the status of a business operator pursuant to Article 39(1) of the Act shall succeed to the status of the business operator where the business operator transfers his/her business, and Article 2 Subparag. 10 of the Act provides that a

In addition, Article 48(1) of the Enforcement Rule of the Food Sanitation Act provides that a person who intends to report the succession to the status of a business operator under Article 39(3) of the Act shall submit a report-receiving authority along with a certificate of business report and a copy of a document evidencing transfer or acquisition, and the report-receiving authority requires the transferor to submit a certificate of the transferor's personal seal impression if the transferor does not visit together (Evidence

C. Determination

In light of the relevant provisions of the Act and the Enforcement Rule, imposing an obligation to report the fact on a person who succeeds to the status of a business operator within one month, and punishing him/her when he/she violates this provision shall be deemed to be aimed at regulating the intentional failure of a report even though it is possible for a person who succeeds to the status of a business operator to report

However, according to the facts and procedures seen above, Nonindicted 1, who reported the business, did not cooperate with the Defendant in reporting the succession to the status of the business operator while disputing the validity of the business transfer, and did not report the closure of the business, and the competent authority does not revoke Nonindicted 1’s business report. The Defendant is allowed to report only after receiving documents necessary for reporting the succession to the status of Nonindicted 1 from Nonindicted 1, or Nonindicted 1’s business report was revoked (see, e.g., evidence 1).

Therefore, in this case, the defendant could not report the succession to the status of the business operator intentionally, and there is no other evidence to acknowledge it. Thus, the facts charged in this case should be pronounced not guilty on the ground that there is no proof of criminal facts, and the court below found guilty on the grounds as stated in its reasoning. The court below erred by misapprehending the facts, which affected the conclusion of the judgment

5. Conclusion

Thus, the defendant's appeal is justified, and the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

The summary of the facts charged of this case is identical to that of paragraph (2) above, and as seen in paragraph (4) above, the facts charged of this case constitutes a time when there is no proof of crime, and thus, a judgment of innocence is rendered under the latter part

Judges Lee Sung-won (Presiding Judge)