Whether business license is revoked or business is suspended where a person who acquires a general restaurant business without fulfilling his/her duty to report the change in the area of the place of business continues to conduct the business without fulfilling his/her duty to report (affirmative)

Articles 37(4), 39(1), and 75(1)7 of the former Food Sanitation Act (Amended by Act No. 932, Jan. 18, 2010); Article 21 subparag. 8 and Article 26 subparag. 4 of the former Enforcement Decree of the Food Sanitation Act (Amended by Presidential Decree No. 22794, Mar. 30, 201);

Supreme Court Decision 2010Do4869 Decided July 15, 2010 (Gong2010Ha, 1617)

Plaintiff

The head of North Korea of Busan Metropolitan City

Busan High Court Decision 2012Nu720 decided July 27, 2012

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

According to Article 37(4) of the former Food Sanitation Act (amended by Act No. 932, Jan. 18, 2010; hereinafter the same), Article 21 subparag. 8, and Article 26 subparag. 4 of the former Enforcement Decree of the Food Sanitation Act (amended by Presidential Decree No. 22794, Mar. 30, 201); where a person intends to operate a general restaurant subject to reporting or to change important matters, such as the size of the relevant place of business, he/she shall report to the head of the Gu, etc.; where a person violates the above duty to report, he/she may revoke the business license or suspend the whole or part of the business for a fixed period not exceeding 6 months; where a person who has reported his/her business transfers his/her business, he/she shall also be deemed to have succeeded to the status of the transferee; where a person who has failed to report his/her business without reporting the change in the area of his/her place of business, etc., or where he/she continues to report his/she without reporting the change the area.

citing the reasoning of the judgment of the court of first instance, the court below held that even if the plaintiff had been subject to the first disposition of this case on the ground that he had been engaged in business without filing a report on the change since the size of the place of business was 37.29 square meters and 150.47 square meters and the status of the operator was expanded from the original report, the report on the change was not made until he succeeded to the plaintiff. Even if the plaintiff had not directly expanded the place of business of the restaurant of this case and continued to operate the restaurant of this case without permission, as alleged by the plaintiff, the disposition of business suspension, which is a sanction, may be imposed, as long as the plaintiff continued to operate the restaurant of this case without filing a report on the change after he succeeded to the status of the operator. Furthermore, even if the plaintiff had been subject to the second disposition of this case on the ground that he had already been engaged in business without filing a report on the change, it did not constitute a violation again, and thus, it cannot

In light of the above legal principles and records, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the prohibition against double Jeopardy as alleged in the

In addition, in light of the relevant legal principles and records, the court below is just to determine that the second disposition of this case cannot be deemed to be an abuse of discretion or beyond its limit, and there is no error of law such as misunderstanding of legal principles as otherwise alleged in the grounds of appeal [Attachment 15] of the former Enforcement Rule of the Food Sanitation Act [Attachment 23] of the former Enforcement Rule of the Food Sanitation Act (amended by Ordinance of the Ministry of Health and Welfare No. 22, Sept. 27, 2010; hereinafter the same shall apply], in light of the following circumstances: (a) the first disposition of this case, which already received the first disposition of this case, is in accordance with the disposition standards stipulated in Article 89 and [Attachment 15] of the former Enforcement Rule of the Food Sanitation Act (amended by Ordinance of the Ministry of Health and Welfare No. 22, Sep. 27, 2010; hereinafter the same shall apply].

Meanwhile, the Plaintiff asserted in the grounds of appeal that “the instant disposition was omitted on the ground that the instant place of business includes an unauthorized building, and the competent authority did not accept a report of change due to an unauthorized building, and thus, the Plaintiff imposed a duty of report of change impossible to the Plaintiff and did not perform such duty.” However, as otherwise alleged in the grounds of appeal, even if the instant place of business includes an unauthorized building, the Plaintiff still bears the duty to remove the unlawful state of the instant place of business and report of change. Therefore, the lower court did not err by misapprehending the legal doctrine that affected the conclusion of the judgment.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Chang-suk (Presiding Justice)