(영문) 대법원 2019.7.25.선고 2017도9001 판결

The part of the judgment of the court below that violated the Food Sanitation Act, such as the storage of unregistered foods, shall be reversed, and that part of the case shall be remanded to the Panel Division of the District Court.

Reasons

The grounds of appeal are examined.

1. Article 10(2) of the former Food Sanitation Act (amended by Act No. 15484, Mar. 13, 2018; hereinafter the same) provides that "food, etc., the standards for labeling of which are determined under paragraph (1) shall not be sold, imported, displayed, transported, or used for business for the purpose of sale unless they are indicated in compliance with such standards." The term "use for business" includes food and food additives (see, e.g., Supreme Court Decision 2005Du548, May 12, 2005). The term "use for business" means that food or food additives are collected, manufactured, processed, cooked, stored, subdivided, or sold for the purpose of collecting, storing, transporting or selling food or food additives, or that food is not necessarily used for the purpose of manufacturing, transporting or selling apparatus, containers or packages for the purpose of sale, but it is difficult to view it as an act of keeping and selling food in accordance with Article 10 of the former Food Sanitation Act as an act of keeping and maintaining it in accordance with such specific criteria.

2. Examining the reasoning of the lower judgment in light of the evidence duly admitted, the following facts are revealed.

A. The Defendants are the representative director and business directors of the FF corporation established for the purpose of manufacturing and selling processed fishery products.

B. The above company is engaged in the business of purchasing active language and storing it in freezing in freezing conditions by removing internal organs, etc., and then cooking them, and selling them in freezing condition.

C. After manufacturing and processing as above, the Defendants kept the returned steam language in freezing condition without indicating the descriptions under Article 10(1)1 of the former Food Sanitation Act.

3. Examining the above facts in light of the legal principles as seen earlier, if the Defendants were to sell a steamed language after processing the live language and manufacturing it, and then have returned it and keep it in freezing condition, it shall be deemed as being used for business. Therefore, it constitutes a case where the Defendants used it for business under Article 10(2) of the former Food Sanitation Act.

Nevertheless, without examining and determining the above circumstances, the lower court reversed the first instance judgment convicting the Defendants of this part of the charges on this part of the charges on the ground that it did not constitute a case where the Defendants’ act of using “for business” only means the act of using the pertinent business as intended for the pertinent business, and on the premise that it does not constitute a case where the Defendants’ act of keeping a shot language in custody for sale. In so determining, the lower court erred by misapprehending the legal doctrine on “business use” under Article 10(2) of the former Food Sanitation Act and failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of

4. Therefore, the part of the judgment of the court below that violated the Food Sanitation Act, such as the storage of unreported foods, is reversed, and that part of 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