[1] Whether “use in business” under Article 10(2) of the former Food Sanitation Act includes food and food additives (affirmative) and the meaning and scope of “use in business”

[2] In a case where the representative director of Gap corporation and the business director of Gap corporation were indicted for violating the former Food Sanitation Act on the ground that they conspired with the defendants to sell the steam language processed by the active language, displayed and stored the steam language in the freezing warehouse of Gap corporation for the purpose of sale in freezing without marking the indication under Article 10 (1) 1 of the former Food Sanitation Act, the case holding that the judgment below acquitted the defendants of the charges on the ground that the court below erred in the misapprehension of legal principles and incomplete deliberation on the ground that the defendants' act was used for business if the defendants were to sell the steam language after manufacturing the steam language and then store it in freezing and then sell it again, and stored it again in freezing, it constitutes "use for business" under Article 10 (2) of the former Food Sanitation Act

[1] Article 1, Article 2 subparag. 9, Article 10(1)1 (see current Article 4(1) and (2) of the former Food Sanitation Act (Amended by Act No. 15484, Mar. 13, 2018); Article 97 subparag. 1 (see current Article 4(1) and (2) of the Act on Labeling and Advertising of Foods, Etc.); Article 97 subparag. 1 (see current Article 28 subparag. 1 of the Act on Labeling and Advertising of Foods, Etc.) of the former Food Sanitation Act / [2] Article 30 of the Criminal Act; Article 2 subparag. 9 of the former Food Sanitation Act (Amended by Act No. 15484, Mar. 13, 2018); Article 10(1)1 of the former Food Sanitation Act (see current Article 4(1) and (2) of the Act on Labeling and Advertising of Foods, Etc.); Article 97 subparag. 1 (2) of the Act on Labeling and Advertising of Foods, etc.

[1] Supreme Court Decision 2005Du548 decided May 12, 2005 (Gong2005Sang, 962)

Defendant 1 and one other

Prosecutor

Law Firm Shin & Yang, Attorneys Oi-Un et al.

Suwon District Court Decision 2016No3617 decided May 24, 2017

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.

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 “any food, etc., the standards for labeling of which are determined pursuant to paragraph (1) shall not be sold, imported, displayed, transported for sale, or used for business unless it is indicated that such standards are met.” The term “use in business” includes food and food additives (see Supreme Court Decision 2005Du548, May 12, 2005, etc.). The term “use in business” means “business of collecting, manufacturing, processing, cooking, storing, subdividing, transporting or selling food or food additives, or manufacturing, transporting or selling apparatus, containers, containers, or packages” under Article 2 subparag. 9 of the former Food Sanitation Act includes not only specific acts prescribed in the foregoing, but also acts incidental to such acts, which constitute an act of storing food, etc., under Article 10 of the former Food Sanitation Act, at a certain place where business operators are engaged in business.

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 non-indicted 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 a freezing state without indicating the indication 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 then return it, and keep it in freezing condition, it shall be deemed as being used for business. Therefore, it constitutes “use 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 the ground that the Defendants’ act of using “use in business” means only the act of using the pertinent business as intended for the pertinent business, and subsequently, did not constitute a case where the Defendants’ act of keeping a shot language for sale was used for business purposes. In so determining, the lower court erred by misapprehending the legal doctrine on “use in business” under Article 10(2) of the former Food Sanitation Act and failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The Prosecutor’

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 further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent

Justices Noh Jeong-hee (Presiding Justice)