[1] Whether “food” under Article 2 subparag. 1 of the Food Sanitation Act includes natural food (affirmative), and the standard for determining whether products produced, collected, and caught from nature constitute “food” under the Food Sanitation Act as natural food from any stage

[2] Whether, in principle, a fishery product, which is a fish or a bird captured and caught in the sea, river, etc. and can be used for food, constitutes “food” under the Food Sanitation Act even before such fishery product is processed or cooked (affirmative)

[3] Meaning of the proviso of Article 21 subparagraph 4 of the Enforcement Decree of the Food Sanitation Act, which provides an exception to the reporting of food transportation business, includes “transporting food for sale at the place of business of the relevant business operator for the purpose of sale” and whether it includes “transporting food to a purchaser” in the course of selling food that is likely to be decomposed or changed (negative)

[1] Article 2 subparag. 1 of the Food Sanitation Act provides that food is all food (excluding food taken as medicine). Not only processed and cooked food but also natural food is included in food. However, whether products produced, collected, or caught from nature constitute food under the Food Sanitation Act as natural food from any stage should be determined by comprehensively considering the language and text, contents, and regulatory structure of food-related Acts and subordinate statutes, including the Food Sanitation Act, which aim to prevent sanitary harm caused by food and contribute to the promotion of public health, and the sanitary monitoring of food production, sale, transportation, etc., as well as the need to comprehensively consider our society’s habits or universal food concept.

[2] Although fishery products, such as active fish, are not clearly defined in the Food Sanitation Act as food from any stage, considering the contents, language and structure of the statutes related to food sanitation, and the eating habits or universal food concept in our society, fishery products that can be used for food as fish or birds gathered and caught by sea, river, etc. shall, in principle, be deemed food even before they are processed or cooked. The reasons are as follows.

First, since the Food Sanitation Act comprehensively sets the concept of food as all kinds of food except for medicine, fishery products, such as active fish, should also be deemed food as a matter of principle. Second, Article 21 subparag. 4 of the Enforcement Decree of the Food Sanitation Act stipulates fish and cryls as food transportation business in accordance with the delegation of the Food Sanitation Act. This is premised on the fact that fish and cryls are food. Third, Article 5(1) of the Enforcement Rule of the Food Sanitation Act provides that food is also used as a raw material. Thus, if fish and cryls are used as food as a raw material, they should be viewed as food even before processed or cooked. Fourth, the Food Sanitation Act provides that food standards and specifications (this is recorded before the food factory) as a food product, which provides the food standards and specifications pursuant to Article 7(1) of the Food Sanitation Act, and provides that the food product is not subject to food sanitation regulations, such as food sanitation, in light of the concept of food sanitation, and thus, it can be seen that the food product is not subject to food sanitation regulations.

[3] The former part of Article 37(4) of the Food Sanitation Act provides that a person who intends to run a business as prescribed by the Presidential Decree shall file a report with the competent administrative agency on each type of business or each place of business, as prescribed by the Presidential Decree. According to delegation, Article 25(1)4 of the Enforcement Decree of the Food Sanitation Act provides that “food transportation business” under Article 21 subparag. 4 of the Enforcement Decree of the Food Sanitation Act refers to one of the types of business subject to a business report. As to food transportation business, Article 21 subparag. 4 of the Enforcement Decree of the Food Sanitation Act provides that “the business of carrying food for the purpose of sale at the place of business of the relevant business operator” and the proviso excludes “the business of transporting food for the purpose of sale at the place of business of the relevant business operator” and “the relevant business operator shall be subject to the business report under the Food Sanitation Act, and excluded from the business report subject to the proviso of Article 21 subparag. 4 of the Enforcement Decree of the Food Sanitation Act.

According to the language, content, and regulatory system of the proviso of Article 21 subparag. 4 of the Enforcement Decree of the Food Sanitation Act, “the case of transporting food for the purpose of sale at the business office of the relevant business operator” in the said proviso refers to the case where the business operator transports food for the purpose of sale at his/her own business office. Furthermore, it is reasonable to interpret such provision in light of the following: (a) the case where the business operator sells food for the purpose of sale; and (b) the case where the business operator sells food for the purpose of sale at his/her own business office; and (c) the case where the business operator sells food for the purpose of sale is not “the case of transporting food for the purpose of sale at his/her own business office”; and (d) the case where the food sales business operator sells food for the purpose of sale at his/her own business office; and

[1] Article 1 and Article 2 subparag. 1 of the Food Sanitation Act / [2] Article 2 subparag. 1 and Article 7(1) of the Food Sanitation Act, Article 21 subparag. 4 of the Enforcement Decree of the Food Sanitation Act, Article 5(1) of the Enforcement Rule of the Food Sanitation Act / [3] Articles 37(4) and 97 subparag. 1 of the Food Sanitation Act, Article 21 subparag. 4 and Article 25(1)4 of the Enforcement Decree of the Food Sanitation Act

[1] Supreme Court Decision 88Do2312 Decided July 11, 1989 (Gong1989, 1266) Supreme Court Decision 2016Do237 Decided January 12, 2017 (Gong2017Sang, 418)

Defendant

Prosecutor

Ulsan District Court Decision 2014No1041 decided January 23, 2015

The judgment below is reversed, and the case is remanded to the Ulsan District Court.

The grounds of appeal are examined.

1. The summary of the facts charged of the instant case is that the Defendant, who carries on active fish distribution business from February 1, 2010 to June 25, 2013, owns one vehicle for active fish transport, and stores fishery products, such as white, brick, spawn, spawn, and spawn, by leasing two spawn pipes from “○○ Fishery” located in Ulsan-gu, Ulsan-gu, while transporting them to restaurants, such as the frequency of 20 places in racing, spawn and spawn, and distributed them for wholesale, without satisfying facility standards, and did not report food transportation business by raising sales amounting to KRW 260 million in the year of 2012.

The lower court upheld the first instance judgment that acquitted the Defendant on the ground that the Defendant’s transporting fishery products, such as active fish, at the request of the buyer, constitutes “transporting food for sale at the business entity’s place of business” under the proviso to Article 21 subparag. 4 of the Enforcement Decree of the Food Sanitation Act, and thus, it did not constitute a food transportation business subject to reporting.

The key issue of this case is whether the defendant's active fishing, etc. is subject to reporting of food transportation business, and whether fishery products such as active fishing are food under the Food Sanitation Act.

2. First, we examine whether fishery products, such as active fish, constitute food.

A. Article 2 Subparag. 1 of the Food Sanitation Act provides that all foods (excluding foods taken as medicine) are included in food (see, e.g., Supreme Court Decision 88Do2312, Jul. 11, 1989). However, whether products produced, collected, and caught from nature constitute “food” under the Food Sanitation Act as natural food from any stage constitutes “food” under the Food Sanitation Act should be determined by comprehensively considering the language and text, contents, and regulatory structure of the food-related statutes, including the Food Sanitation Act, which intends to prevent sanitary harm caused by food and contribute to the improvement of public health, and the need to regulate food as food, such as the sanitary monitoring of the production, sale, transportation, etc. of food, and the general food concept of our society (see Supreme Court Decision 2016Do2377, Jan. 12, 2017).

Although fishery products, such as active fish, are not clearly defined in the Food Sanitation Act as food from any stage, considering the content of the provisions of statutes related to food sanitation, language and structure, food habits or universal food concept in our society, etc., the conclusion that fishery products that can be used for food as fish or birds gathered and caught in the sea, river, etc. should, in principle, be viewed as food even before they are processed or cooked. The reasons are as follows.

First, since the Food Sanitation Act is a food except for the above food, the concept of food is very comprehensive. Thus, fishery products such as active fish should be regarded as food in principle.

Second, Article 21 (4) of the Enforcement Decree of the Food Sanitation Act provides for food transportation business in accordance with the delegation of the Food Sanitation Act, and specifies fish and birds as objects of food transportation business. This is based on the premise that fish and birds are food.

Third, Article 5 (1) of the Enforcement Rule of the Food Sanitation Act provides that food shall be deemed food even if it is used as a raw material. Thus, if fish and birds are used as a raw material for food, it shall be deemed food even before it is processed or cooked.

Fourth, Article 7 (1) of the Food Sanitation Act, which provides the food standards and specifications, stipulates that the "food standards and specifications (which is contained in the food code)" as the fishery products, such as fish and birds, shall be included in the food. From 2007, fishery products such as active fish shall be included in the food.

Fifth, if fishery products, such as active fish, are not considered to be food under the Food Sanitation Act, there is a risk of a serious gap in the sanitary surveillance of fishery products, because fishery products such as active fish, etc. are excluded from the subject of the Food Sanitation Act.

Sixth, in light of our society’s food habits, food culture, cooking techniques, universal food concept, etc., fish and birds which can be used for food are food. Such concept has been supported by food-related Acts and subordinate statutes, such as food sanitation laws, and has reached a normative level beyond the factual dimension.

B. Fishery products, such as white joints, holes, dunes and bags, transported by the Defendant in the instant case, are collected from the sea and sold for food, and constitute food under the Food Sanitation Act.

3. Next, we examine whether the defendant's act of transporting fishery products, such as active fish, is subject to reporting under the Food Sanitation Act.

A. The former part of Article 37(4) of the Food Sanitation Act provides that a person who intends to run a business as prescribed by the Presidential Decree shall report to the competent administrative agency on each type of business or each place of business, as prescribed by the Presidential Decree. According to delegation, Article 25(1)4 of the Enforcement Decree of the Food Sanitation Act provides that “food transport business” under Article 21 subparag. 4 of the Enforcement Decree of the Food Sanitation Act refers to one of the types of business subject to business reporting. As to food transport business, Article 21 subparag. 4 of the Enforcement Decree of the Food Sanitation Act provides that “the business of carrying food for sale at the business office of the relevant business operator” and “the business of transporting food that is manufactured and processed by the relevant business operator shall be excluded from the category of business subject to the business reporting under the Food Sanitation Act, and Article 21 subparag. 4 of the Enforcement Decree of the Food Sanitation Act provides that “the business of transporting food that is likely to be decomposed and changed,” and the proviso provides for exceptions to the business reporting under the proviso to Article 21 subparag. 4 of the Food Sanitation Act.

According to the language, content, and regulatory system of the proviso of Article 21 subparag. 4 of the Enforcement Decree of the Food Sanitation Act, the term “in cases of transporting foods for the purpose of sale at the business office of the relevant business operator” in the said proviso means cases where the business operator transports foods for the purpose of sale at his/her own business office. Furthermore, the term “in cases of transporting foods for the purpose of sale” cannot be deemed to include “in cases of transporting foods to the purchaser” in the course of selling foods that are likely to be decomposed or changed. Even if a business operator is equipped with necessary facilities due to a change in the facility standards for food sales business and food transportation business, it is not necessary to install necessary facilities as a food transportation business operator. It is reasonable to interpret such food as above in light of the difference between the cases of transporting foods that are likely to be decomposed or changed for sale at the business office and the degree of sanitary hazards

B. The Defendant, without filing a report on food transport business, committed an act of transporting fishery products, such as white, hot, dunes, dunes, and bags, in selling and transporting them to restaurants, such as restaurants, such as racing, sibs, and sibs, which are not the Defendant’s place of business. This is an act of transporting food that is likely to be decomposed and changed under the main sentence of Article 21 subparag. 4 of the Enforcement Decree of the Food Sanitation Act. It does not constitute “the case of transporting food for the purpose of sale at the relevant business operator’s place of business” under the proviso of Article 21 subparag. 4 of the Enforcement Decree of the Food Sanitation Act that provides for the exceptional reason for the exemption from reporting food transport business. In addition, if the Defendant continuously and repeatedly transported fishery products by using active transport vehicles while engaging in the sale of fishery products, it should be deemed that the Defendant sold and transported fishery products for profit-making purposes. Accordingly, it is unlawful for the Defendant

4. Nevertheless, the lower court determined that the Defendant’s act did not constitute a food transportation business subject to reporting, and thus, acquitted the instant charges. In so determining, the lower court erred by misapprehending the legal doctrine on the interpretation of the Food Sanitation Act and the Enforcement Decree of the Food Sanitation Act, thereby adversely affecting the conclusion of the judgment

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)