(영문) 수원지방법원 2021.1.13. 선고 2020구단6413 판결

B. On August 16, 2019, the Incorporated Foundation B and the Plaintiff concluded a contract for entrusted operation with the establishment of meal service facilities (hereinafter “instant meal service facilities”) in Gwangju City C and II Ddong (hereinafter “instant meal service facilities”) on the part of the Incorporated Foundation B and the Plaintiff (hereinafter “instant entrustment contract”).

C. On August 23, 2019, B, an incorporated foundation, completed a report on the establishment and operation of the instant meal facility against the Defendant.

D. After August 26, 2019, the Plaintiff completed a business report on the operation of the instant meal facility, which is a business that prepares and provides the instant meal facility to the Defendant, in accordance with the instant consignment contract. The instant meal facility is currently operated as an ancillary facility of the funeral facility (hereinafter “instant funeral facility”).

E. On November 13, 2019, the Defendant imposed a penalty surcharge of KRW 5,580,000 on the Plaintiff (hereinafter “instant disposition”) on the ground that the Plaintiff did not keep the foods cooked and supplied (one person per each time) at least 18 degrees below the 144 hours under the 18th degree below the 144 hours under the 19th sentence.

[Ground of recognition] Evidence Nos. 1 through 4, Evidence Nos. 1 through 5, and 7, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

The Plaintiff did not engage in general restaurant business in addition to the matters stipulated in the instant consignment contract.

In this case where only minor violations such as keeping a preservation formula are committed, the disposition of this case, which is based on the premise that the plaintiff was engaged in the business of general restaurants, shall be revoked as unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

According to Article 2 subparag. 12 of the former Food Sanitation Act, “facilities that continuously provide food to many and unspecified persons without profit-making purposes.” The Defendant asserts that the instant disposition is lawful on the ground that the Plaintiff entrusted with the operation of meal service facilities sold food to many and unspecified persons for profit-making purposes. However, in light of the following circumstances, the evidence submitted by the Plaintiff alone is insufficient to deem that the Plaintiff sold food to many and unspecified persons for profit-making purposes in the meal service facility of this case, and there is no other evidence to acknowledge this otherwise. Accordingly, the instant disposition on the premise that it is unlawful and revoked.

① The instant funeral service establishment is a private charnel facility or grave facility, and its visitors are identified as employees belonging to the instant funeral service establishment and the users of the instant funeral service establishment, i.e., the deceased’s bereaved family members inside the instant funeral service establishment, and it is difficult to present access by the general public, barring special circumstances. Therefore, it is reasonable to deem that a person who received food at the instant meal service establishment, which is an ancillary facility to the instant funeral service establishment, is identified as an employee belonging to the instant funeral service establishment and its users. Of the users of the instant funeral service establishment, a person other than the bereaved family members, may be included in the instant funeral service establishment, but it may be deemed temporary use. Other materials that can be deemed that the general public usually have access to the instant funeral

② The food safety management guidelines published by the Ministry of Food and Drug Safety, based on the 'specific multiple persons' under Article 2 subparag. 12 of the former Food and Drug Safety Act, provide that 'in principle, persons belonging to facilities (institution) scheduled to install meal service facilities, including those who use facilities as organizations, and users of specific places who do not use outside persons, but also allow outside customers to temporarily use meal service facilities. As seen earlier, since those who receive food in the instant meal service facilities are specified as employees belonging to the instant funeral service facilities and their users, it is reasonable to view that food is provided to many specific persons under Article 2 subparag. 12 of the former Food and Drug Act in the instant meal service facilities.

③ The Defendant asserts that the instant meal facilities are operated for profit on the grounds that the instant meal facilities sell alcoholic beverages and high-priced food to outside persons who are not employees. However, the aforementioned food safety management guidelines suggest that, on the basis of “non-profit” under Article 2 subparag. 12 of the former Food Sanitation Act, the instant meal facilities are operated for profit-making purposes, i.e., “where the instant meal facilities are imposed only for the maintenance of minimum facilities in providing meals, etc., or where the instant meal facilities are provided as incidental meals, etc. for the operation of facilities even if the instant meal facilities are provided,” i.e., “non-profit., where the instant meal facilities are provided with meals, etc. for profit-making purposes.” As seen earlier, the instant meal facilities are specified as the users of the instant meal facilities, and rather high-priced meals and alcoholic beverages are provided as they are operated for the proper operation of the instant meal facilities, it is difficult to conclude that the instant meal facilities are operated for profit-making purposes solely on the circumstance of the Defendant.

④ In relation to the instant case, the Plaintiff’s representative director was accused of the fact that he operated a general restaurant for profit-making purposes at the meal facilities of this case. The prosecutor in charge of the Sungnam District Prosecutor’s Office of Sungnam District Prosecutors’ Office, on January 21, 2020, which stated that the instant meal facilities are not deemed to have been operated as a general restaurant for profit-making purposes.”

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition.

Judges

Judges Kim Jong-soo

Attached Form

A person shall be appointed.

참조조문

-식품위생법 제2조 제12호

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