24 Whether a case constitutes an ordinary restaurant business where alcoholic beverages and internal liquors are sold without cooking at a convenience room for 24 hours (negative)

According to Article 7 subparagraph 8 (b) of the former Enforcement Decree of the Food Sanitation Act (amended by Presidential Decree No. 15157 of Oct. 14, 1996), the term "general restaurant business" means a business of cooking and selling food and drinking together with meals. Article 20 [Attachment 9] of the former Enforcement Decree of the Food Sanitation Act (amended by Ordinance of the Ministry of Health and Welfare No. 41 of Dec. 20, 1996) provides that "business of cooking and selling food" as well as "business place, water supply facilities, lighting facilities, and toilet" as common facility standards of food service in the facility standards by type of business under Article 20 [Attachment Table 9] of the former Enforcement Decree of the Food Sanitation Act (amended by Presidential Decree No. 15157 of Oct. 14, 1996). Thus, it is reasonable to interpret "business of cooking and selling food" as "business of cooking and selling food in the food room, so long as the above business of cooking and selling food and alcoholic beverages can not be seen.

Article 21(2) of the Food Sanitation Act, Article 7 subparag. 8(b) of the Enforcement Decree of the Food Sanitation Act, Article 20 [Attachment Table 9] of the Enforcement Rule of the Food Sanitation Act

Supreme Court Decision 97Do2715 delivered on February 27, 1998 (the same purport)

Defendant

Prosecutor

Seoul District Court Decision 97No4532 delivered on October 2, 1997

The appeal is dismissed.

The grounds of appeal are examined.

1. As to the misapprehension of legal principle

According to Article 21 (2) of the former Enforcement Decree of the Food Sanitation Act (amended by Presidential Decree No. 15157 of Oct. 14, 1996), the term "general restaurant business" means a business of cooking and selling food and drinking together with meals. The term "business of cooking and selling food, which is allowed to do so in addition to meals" under Article 7 (8) (b) of the former Enforcement Decree of the Food Sanitation Act (amended by Presidential Decree No. 15157 of Oct. 14, 1996). In light of the fact that Article 20 [Attachment 9] of the former Enforcement Rule of the Food Sanitation Act (amended by Ordinance No. 41 of Dec. 20, 1996), the term "business of cooking and selling food" as referred to in the above Enforcement Decree refers to "business of cooking and selling food after cooking and selling food."

In the same purport, the court below is just in holding that the defendant was not guilty of the above convenience room business, since he did not constitute an ordinary restaurant business as prescribed by the Food Sanitation Act, even if the defendant had been equipped with 7 customers, 22, and 10 cupped cups and sold alcoholic beverages to customers with hot water which can be cooked in the instant convenience room, so long as he had not been sold after cooking food, the above convenience room business cannot be viewed as an ordinary restaurant business as prescribed by the Food Sanitation Act, and there is no violation of the misapprehension

The grounds of appeal disputing this issue cannot be accepted.

2. As to the mistake of facts

In light of the records, the court below's decision that the defendant did not engage in cooking while running the convenience room business of this case is just, and even if the defendant installed a water tank and a table to cut off the instant cup, and provided them to customers, such an act cannot be viewed as an "act of cooking food" immediately.

The grounds of appeal pointing this out are not acceptable.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Seo Sung-sung (Presiding Justice)