Defendant

Prosecutor

Kim Young-young

Attorney O Byung-hee in charge of the new century

Seoul Central District Court Decision 2007Ra4134 Decided February 12, 2008

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 2,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted by 50,000 won into one day.

The provisional payment of the amount equivalent to the above fine shall be ordered.

1. Summary of grounds for appeal;

A. According to Article 8 of the Building Act, construction of a building requires permission from the head of the competent Gu, and according to Article 69(2) of the Building Act, the permitting authority may request the Seocho-gu Office not to permit the business and other acts in accordance with other Acts and subordinate statutes conducted using buildings violating the Building Act. Thus, it is justifiable for the Seocho-gu Office to refuse to accept the report on the Defendant’s business on the ground that the report on the Defendant’s business

B. Therefore, the court below found the defendant not guilty on the ground that the defendant's act constitutes a unreported business activity.

2. Ex officio determination and summary of the facts charged;

A. Ex officio determination

Before determining on the grounds for appeal by the defendant, the public prosecutor applied for changes in the indictment with the content that the facts charged are modified as follows, and since this court permitted this, the judgment of the court below, which is based on the original facts charged, cannot be exempted from reversal.

I will examine whether the revised facts charged are recognized or not.

B. Summary of the revised facts charged

The Defendant is a person who operates ○○○ hotel 6th floor in Seocho-gu Seoul Metropolitan Government Dokwondong (number omitted) and does not report to the competent authorities, without reporting to the competent authorities;

From April 28, 2007 to January 15, 2008, after having a cooking facility in approximately 1,110 square meters from the aforementioned trading hole, equipped with approximately 40 tables and 350 chairs, and offered them to those who find the said trading hole food, a general restaurant business.

3. Defendant's assertion;

A. At least in 2006, the Defendant filed a report meeting the legitimate requirements for the instant general restaurant business with all documents requested by the Gu office at the Seocho-gu Office, and the report on the general restaurant business of this case takes effect as the report at the time of receipt without any need to take measures of a different group, such as acceptance disposition by an administrative agency, issuance of a business notification certificate, etc. as a self-satisfy report. Thus, the instant business carried out thereafter is not a non-reported business.

B. Even if the Defendant’s business activity is an act without permission under the Building Act, the circumstance that the Defendant’s business activity is an illegal building without permission is merely related to the owner of the building, and does not belong to the Defendant’s responsible area, which is merely the lessee, and the Defendant has made a lot of efforts to report its business, and there is no realistic method to report the instant place of business due to the lessee’s failure to do so. The Defendant’s act is a case where the Defendant’s business activity falls under a case where the Defendant’s business activity does not violate the social rules of Article 20 of the Criminal Act, or where there is no possibility of lawful act, due to the fact that there is no realistic method to report the instant place of business due to the lessee’s failure to do so.

4. The judgment of this Court

(a) Requirements for legitimate reports;

(1) According to Article 22(5) of the Food Sanitation Act, Article 13(1)7 of the Enforcement Decree of the same Act, and Article 7 subparag. 8(b) of the same Act, a person who intends to conduct an ordinary restaurant business shall report to the head of a Si/Gun/Gu by installing the pertinent facilities prescribed by the Enforcement Rule of the same Act and submitting a report in the prescribed form. Thus, in cases of a report on a general restaurant business that satisfies legitimate requirements, the report becomes effective as a report at the time of receipt without the need of the administrative agency to wait for a separate measure, such as acceptance disposition, and thus, the acceptance of the report is not denied.

(2) However, Articles 22(5) and 21(1)3 of the Enforcement Rule of the same Act and Article 20 [Attachment 9](8) of the Enforcement Rule of the same Act provide for common facilities standards and facilities standards by type of business for various physical facilities, such as places of business, sculptures, and toilets, which shall be equipped to report the general restaurant business. The facility standards referred to in this context are based on the premise that the physical facilities subject to the facility must be naturally in compliance with the construction-related laws and regulations (where why is why is, the Building Act and the Food Sanitation Act should not be interpreted as having a relation that the Food Sanitation Act preferentially applies to the general restaurant business because they differ from the legislative purpose, provisions, and scope of application). If the building reported the general restaurant business and the building without permission constructed in violation of the Building Act because it did not obtain permission under the Building Act, even if the building satisfies the physical facilities requirements prescribed by the Food Sanitation Act, it cannot be deemed as a report meeting the requirements (see Supreme Court Decision 93Nu137499, Apr. 27, 1999).

(3) Therefore, even if the construction of a restaurant meets the physical facility requirements required for filing a report on an ordinary restaurant business under the Food Sanitation Act, if the building intended to install the restaurant is an unauthorized building constructed in violation of the Building Act without obtaining permission under the Building Act, such building cannot be deemed a lawful report on an ordinary restaurant business, and its acceptance is inevitable, and the continuation of a business activity in such a state constitutes an unreported business activity (see Supreme Court Decision 97Do3121, Apr. 24, 1998).

B. According to the evidence duly admitted and examined by the court below and the court below on this case, the defendant started the wedding business in the trade name of "△△ △ △ Do Holdings" on or around December 2003 by leasing the general restaurant business place of this case from 1.5 billion won to 1.5 billion won. On or around August 2005, the defendant first known that the above wedding business was subject to reporting of general restaurant business in the process of regulating the free reporting business by the head of Seocho-gu Office. After that, the defendant submitted a report on general restaurant business to the Seocho-gu Office around 2006 on the ground that it was illegal building for which the defendant's business place was not permitted, but received the report on the ground that it was an illegal building for which the defendant's business place was not permitted. On the other hand, the defendant provided the above changed general restaurant facilities from around April 28, 2007 to January 15, 2008 to the above changed public restaurant facilities and provided the above changed general restaurant facilities to 3050.

In light of the above facts, insofar as the above place of business is an illegal building without obtaining permission under the Building Act, the Defendant cannot be deemed to have filed a lawful report on the instant general restaurant business with the competent Seocho-gu Office, and the continuation of business activities in such a state constitutes a unreported business activity.

C. As to the assertion that there is no possibility of expectation of legitimate act or legitimate act

In light of various circumstances, such as the motive, purpose, means and method of the Defendant’s act indicated in the record, the background leading up to the instant case, the circumstances thereafter, and the existence of other lawful remedies, as alleged by the Defendant, the Defendant invested enormous expenses for the instant futures business. The Defendant’s act of unreported business cannot be deemed justifiable solely on the ground that it is merely the lessee of the instant building, and cannot be deemed as satisfying the requirements for urgency and supplement. Thus, the Defendant’s act cannot be deemed as a justifiable act that does not violate social rules.

On the other hand, in order to determine whether the defendant is likely to expect a lawful act, the possibility of expectation should be determined from the perspective of the average person, instead of the actor, under the specific circumstances at the time of the act. The above circumstance alone does not make it impossible for the defendant to proceed to a lawful act.

D. Therefore, the modified facts charged can be fully convicted.

5. Conclusion

Ultimately, the judgment of the court below is reversed in accordance with Article 364(2) and (6) of the Criminal Procedure Act, and the judgment below is reversed and it is again decided as follows.

The above 2.B. The summary of the facts charged modified under subparagraph (b) is as follows.

1. Defendant's legal statement;

1. A written accusation prepared by the head of Seocho-gu;

1. A written statement of the production of leaves;

1. A written confirmation of the preparation of Kim Jong-sik;

1. Article applicable to criminal facts;

Article 77 subparagraph 1 of the Food Sanitation Act and Article 22 (5) of the same Act.

1. Invitation of a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

In order to report the instant business, the Defendant has continuously endeavored to meet the various requirements of the competent authority. However, in full view of all the circumstances, including the Defendant’s age, character and conduct, environment, circumstances after the instant crime, and motive and circumstance of the instant crime, the sentence is determined as ordered, taking into account the following circumstances: (a) the Defendant’s final effort was made to meet the various requirements of the competent authority to report the instant business; (b) the Defendant’s building leased for business purpose was unable to make a lawful report on the ground that the building was illegal; and (c) the instant building was unable

Judges Cho Jong-sung (Presiding Judge)