In the proviso of Article 21 subparag. 4 of the Enforcement Decree of the Food Sanitation Act stipulating the grounds for exemption from reporting food transportation business (i.e., transportation of foods for the purpose of sale at the place of business of the relevant business operator), the meaning of “where the business operator transports foods for the purpose of sale at the place of business of the relevant business operator” (i.e., transportation of foods for the purpose of sale at his/her place of business)

Article 37(4) and Article 97 subparag. 1 of the Food Sanitation Act, Article 21 subparag. 4 and Article 25(1)4 of the Enforcement Decree of the Food Sanitation Act

Supreme Court Decision 2015Do2477 Decided March 15, 2017 (Gong2017Sang, 814)

Defendant

Prosecutor

Ulsan District Court Decision 2014No1125 decided April 17, 2015

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

The grounds of appeal are examined.

1. Article 37 (4) (main sentence) of the Food Sanitation Act provides that a person who intends to operate a business prescribed by Presidential Decree shall report to the competent authority by type of business or place of business, as prescribed by Presidential Decree;

Accordingly, Article 25(1)4 of the Enforcement Decree of the Food Sanitation Act provides that "food transportation business under Article 21 subparag. 4 of the Enforcement Decree of the Food Sanitation Act is one of the businesses that require the above report." However, Article 21 subparag. 4 of the Enforcement Decree of the Food Sanitation Act provides that "the business of carrying food transportation business directly in a sanitary manner, such as plastic beverages (including plastic beverages) or fish, birds, and products processed therefrom (hereinafter referred to as "food that is likely to be decomposed or deteriorated")," while the proviso (hereinafter referred to as "the proviso of this case") provides that "the business of transporting food for the purpose of sale at the place of business of the relevant business operator," and "the case of transporting food manufactured or processed by the relevant business operator," is excluded from food transportation business.

In full view of the language and text of the instant proviso, the legislative intent and purpose, and differences in facility standards for food sales business and food transportation business, the term “transporting foods for the purpose of sale at the relevant business entity’s place of business” in the instant proviso should be deemed to mean cases where the business entity transports foods that are easily decomposed to its place of business for the purpose of sale at its place of business. It cannot be deemed that such cases include cases where the business entity transports foods to the purchaser during the process of selling foods easily decomposed (see Supreme Court Decision 2015Do2477, Mar. 15, 2017).

2. A. According to the reasoning of the first instance judgment and the reasoning of the lower judgment and the evidence duly admitted, the Defendant, as stated in the instant facts charged from June 7, 2012 to June 26, 2013, purchased and stored in the place of business “○○ Fisheries” from a wholesaler, etc. of fishery products, and again sold it to wholesale markets, restaurants, etc., at the request of the buyer, and without reporting food transportation business, transported the said frozen fishery products to a restaurant located in a place where 80 in Ulsan City, by using a vehicle equipped with freezing facilities at the buyer’s request.

B. Examining the above facts in light of the legal principles as seen earlier, the Defendant’s act of transporting food that is easily decomposed under the main sentence of Article 21 subparag. 4 of the Enforcement Decree of the Food Sanitation Act does not constitute “transporting food for the purpose of sale at the pertinent business operator’s place of business” under the proviso of Article 21 subparag. 4 of the Enforcement Decree of the Food Sanitation Act, which provides the grounds for exemption from reporting food transport business. Therefore, the Defendant’s act of carrying the above acts without reporting food transport business constitutes a violation of the main sentence of Article 37(4) of the Food Sanitation Act

3. Nevertheless, the lower court determined otherwise by misapprehending the legal doctrine on the interpretation of the food transportation business requiring a report under the Food Sanitation Act and the instant proviso, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point is with merit.

4. 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.

Justices Kim So-young (Presiding Justice)