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1. The Defendant’s imposition of the penalty surcharge of KRW 11,620,00,00 against the Plaintiff on June 25, 2014, shall be revoked.
2. The costs of lawsuit shall be.
Reasons
1. Details of the disposition;
A. The Plaintiff operated a home flusium (hereinafter “instant store”), which is a major discount store located in Busan-gu, (hereinafter “instant store”). From January 9, 2012 to July 28, 2013, the Plaintiff was supplied with MAP products (hereinafter “instant products”), which were packed with the MAP (Mod Ampphere packing, gaseous refund packing), and displayed and sold them for three days.
B. On June 25, 2014, the Defendant imposed a penalty surcharge of KRW 1,1620,000 as substitute for the suspension of business pursuant to Articles 7, 75, and 82 of the former Food Sanitation Act (amended by Act No. 11985, Jul. 30, 2013; hereinafter “former Food Sanitation Act”) on the ground that “FF fishery products which were in the state of cooling condition were displayed for sale for more than 24 hours for three days and violated the standards for preservation and distribution” (hereinafter “instant disposition”).
[Ground of recognition] Facts without dispute, Gap evidence No. 1, Eul evidence No. 5, the purport of the whole pleadings
2. Whether the instant disposition is lawful
A. The Plaintiff’s assertion 1) The instant product is packaging fishery products carried out using the advanced packaging method (MAP method). Since the Food Sanitation Act does not provide for the packaging method, such sales act does not constitute a violation of the law. 2) Even if the Plaintiff’s act violates the law, the Plaintiff was aware of the instant product as processed food or refrigerating food that is not freezing food under the law, and thus, there was no intention or liability for the violation of the law.
3) Furthermore, even if the sales volume is insufficient and there is no risk to the people, the Defendant’s imposition of a penalty surcharge in lieu of the 7th day of business suspension, which is the maximum limit of the disposition standards, is a deviation from and abuse of discretionary power. B. The facts of recognition are as shown in the attached text of the relevant statutes. C. 1) The MAP packaging method may be sealed.