[1] Whether a report on food manufacturing and processing business should be filed in cases where a fishery product processing business is registered under Article 19 of the Fishery Products Quality Control Act and the relevant business is operated (negative)

[2] Whether a person who received a certificate of registration of the fishery product processing business (crow/cater business) under the Fishery Product Quality Control Act and the Act and the subordinate statutes on the quality control of fishery products may be deemed as a case where the person processed the fishery product processed the fishery product without registration of the fishery product processing business (negative)

[1] Article 37(4) of the former Food Sanitation Act (amended by Act No. 10787, Jun. 7, 201); Article 21 subparag. 1, and Article 25(1)1 of the former Enforcement Decree of the Food Sanitation Act (amended by Presidential Decree No. 2380, Dec. 19, 201); Article 25(2)2 of the former Enforcement Decree of the Food Sanitation Act (amended by Presidential Decree No. 2396, Jul. 19, 201) provides that a person who intends to engage in food manufacturing and processing business shall file a report with the competent authority; Article 25(2)2 of the former Food Sanitation Act (amended by Presidential Decree No. 23962, Jul. 19, 2012) provides that a person who files a report on food processing business under Article 19 of the Food Product Quality Control Act shall not file a report on food processing business; Article 25(1)1 of the Food Industry Promotion Act, which provides that the person shall not be subject to the Food Industry Promotion Act amended by Presidential Decree No. 25.

[2] Comprehensively taking into account the following circumstances: (a) the Act on the Quality Control of Fishery Products classify the types of fishery product processing business into fish oil processing business (liver oil), freezing and freezing business, fishery product processing business on board, fishery leather processing business, and seaweeds processing business; (b) fishery product processing business as a result of the original fishery product processing operation; (c) fishery product processing dynamics as a result of the fishery product processing operation; and (d) fishery product processing dynamics into an application for registration of fishery product processing business (attached Form 16) under Article 32(1) of the former Enforcement Rule of the Quality Control of Fishery Products Act (amended by Ordinance of the Ministry for Food, Agriculture, Forestry and Fisheries No. 296 of July 20, 2012) (attached Form 16), comprehensively taking into account the following circumstances: (a) the Act on the Quality Control of Fishery Products merely indicates the quantity of products to be produced as an application for registration of fishery product processing business; and (b) the fishery product processing business cannot be deemed as a case where a person who has obtained the certificate of registration of the fishery product processing business is registered.

[1] Article 37(4) of the former Food Sanitation Act (Amended by Act No. 10787, Jun. 7, 201); Article 21 subparag. 1 and Article 25(1) subparag. 1 of the former Enforcement Decree of the Food Sanitation Industry Promotion Act (Amended by Presidential Decree No. 2380, Dec. 19, 201); Article 25(2) subparag. 2 of the former Enforcement Decree of the Food Sanitation Promotion Act (Amended by Presidential Decree No. 23962, Jul. 19, 201); Article 25(2) subparag. 2 of the former Enforcement Decree of the Food Sanitation Act (Amended by Presidential Decree No. 23962, Jul. 19, 201); Article 25(2) subparag. 1 of the former Enforcement Decree of the Food Sanitation Promotion Act (Amended by Act No. 23980, Jul. 21, 2011); Article 20 subparag. 15 of the former Enforcement Decree of the Food Industry Promotion Act (see current Article 19)

Defendant

Defendant

Attorneys Kim Jong-he et al.

Busan High Court (Chowon) Decision 2013No317 decided June 18, 2014

The judgment below is reversed, and the case is remanded to Busan High Court.

The grounds of appeal are examined.

1. The lower court found the Defendant guilty on the ground that the Defendant violated Article 2 (1) 2 of the Act on Special Measures for the Control of Public Health Crimes by putting in a cutting machine, cutting off, and packing off, cutting off, and packing off, without reporting the food manufacturing and processing business, and without reporting the instant facts charged, from March 10, 201 to December 6, 201, the Defendant did not report the food manufacturing and processing business, but did not report the food manufacturing and processing business, and the Defendant did the processing business falling under the “fishery products processing operation” while completing the registration of “fishery products processing operation” in the fishery processing business, and thus doing so, it cannot be deemed that the instant processing business constitutes the fishery products processing business operation under Article 2 (1) 2 of the Act on Special Measures for the Control of Public Health Crimes.

2. However, we cannot agree with the above determination by the court below for the following reasons.

A. Article 37(4) of the former Food Sanitation Act (amended by Act No. 10787, Jun. 7, 201); Article 21 subparag. 1, and Article 25(1)1 of the former Enforcement Decree of the Food Sanitation Act (amended by Presidential Decree No. 2380, Dec. 19, 201); Article 25(2)2 of the former Enforcement Decree of the Food Sanitation Act (amended by Presidential Decree No. 2396, Jul. 19, 201) provides that a person who intends to engage in food manufacturing and processing business shall file a report with the competent authority; and Article 25(2)2 of the former Food Sanitation Act (amended by Presidential Decree No. 23962, Jul. 19, 2012) provides that a person who files a report on food processing business under Article 19 of the Food Product Quality Control Act shall not file a report on food processing business under the Food Industry Promotion Act; and Article 25(1)1 of the Enforcement Decree of the Food Sanitation Act shall not be subject to the Food Industry Promotion Act.

Meanwhile, Article 19(1) and (2) of the former Quality Control of Fishery Products Act (amended by Act No. 1085, Jul. 21, 201); Article 19(1) and (2) of the same Act provide that a person who intends to operate a fishery product processing business shall file a registration with the competent authority or file a report, but shall also file a report on the modification of the important matters prescribed by the Enforcement Rule of the registered or reported matters under paragraph (1) and the procedure and method for filing a report on the modification under paragraph (2) shall be prescribed by the Enforcement Rule. Accordingly, Article 26(1) of the former Enforcement Decree of the Fishery Products Quality Control Act (including the name, address, and method of processing business of fishery products at the place of business (in the case of a fishery product processing business which was repealed by Act No. 1085); Article 26(2) of the same Act (in the case of a fishery product processing business operator’s license, the name and method of processing fishery products shall be stated on the ground as the type of fishery product subject to be registered and processed.

The following circumstances: (a) the Fishery Product Quality Control Act classifys the kinds of the fishery product processing business into fish oil processing business (liver oil), freezing and freezing business, fishery product processing business on board, fishery leather processing business, and seaweeds processing business; (b) fishery product processing business as a result of the original fishery product processing operation; and (c) fishery product processing dynamics merely indicate the shape of the product to be produced as appearing in the application form for the registration of fishery product processing business (attached Form 16) as being appearing in the above [attached Form 16]; and (d) even if a person issued a certificate of registration of fishery product processing business (FFS business) processes the fishery product processing business, it cannot be deemed a case where the fishery product processing business (FFS business) is operated without the registration of the fishery product processing business (FFS business).

B. The evidence duly admitted by the court below reveals the following facts.

1) On December 2, 2004, the Defendant completed a report on food manufacturing and processing business, and filed an application for registration with the competent authority on February 11, 201, stating the “type of products to be processed” in the “type of products to be processed for the registration of freezing and refrigerating business” among the fishery product processing business under the former Fishery Products Quality Control Act.

2) After examining the project plan attached to the above registration application and completing on-site inspection, the Nonindicted Party public official in charge issued a certificate of registration of fishery product processing business (storage and freezing business) on February 16, 201 and stated “the kinds of products produced” in the “type of products produced” column of the registration certificate.

3) On March 9, 201, the Defendant reported the closure of business with respect to food manufacturing and processing business, and processed the instant processing act.

C. We examine whether the instant processing act constitutes a non-reported food manufacturing and processing business in light of the aforementioned legal principles.

A person who intends to engage in food manufacturing and processing business shall report to the competent authority, but if he/she engages in the relevant business after registering a fishery product processing business in accordance with the former Fishery Products Quality Control Act and subordinate statutes, the above report is not required. Meanwhile, if he/she registered a freezing and refrigerating business in the fishery product processing business, even if he/she processed a product different from the “type of products” indicated in the relevant registration certificate, it cannot be deemed that he/she engaged in a fishery product processing business without reporting it. Thus, according to the above facts, the defendant cannot be deemed to have operated a food manufacturing and processing business without reporting since he/she completed the registration of the fishery product processing business (free storage and refrigerating business) and conducted the instant processing business

D. Nevertheless, the court below found the defendant guilty of the charges of this case on the ground that the defendant processed the "fishery product without processing the "fishery product scambling scambling scambling scambling scambling scambling scambling scambling scambling scams" as stated in the registration certificate of fishery product processing business (cambling and freezing business). In so doing, the court below erred by misapprehending the legal principles on the fishery product processing business without reporting or the Article 2 (1) 2

3. Therefore, without examining the remaining grounds of appeal, we reverse the judgment of the court below and remand the case 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 Kim Chang-suk (Presiding Justice)