Whether a lessee of a danran constitutes "a successor to the status of a business operator" under Article 25 of the Food Sanitation Act (negative)

In the case of operating a dan business facility by leasing it, it is a matter of whether the succession to the status of the proprietor under Article 25 of the former Food Sanitation Act (amended by Act No. 5099 of Dec. 29, 195) constitutes only the succession to the status of the proprietor. The business transfer under the Commercial Act is distinguishable from the lease of the entire business property in that the lessor transfers the entire business property to the transferee in a lump sum, transfers the status of the proprietor, and transfers the ownership of the entire business property, and such transfer of business under the Commercial Act also applies to the Food Sanitation Act unless there are special circumstances. In addition, in light of the fact that Article 25(2) of the same Act takes the whole acquisition of the business facilities by compulsory procedures such as auction as one of the succession to the status of the proprietor, it is reasonable to view that the succession to the status of the proprietor in order for the lessor to bear at least the responsibility of the report on succession to the status of the proprietor in a dan, and thus, it does not constitute a direct change to the lessor’s name.

Article 25 of the former Food Sanitation Act (amended by Act No. 5099 of Dec. 29, 1995)

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

Defendant

The sentence of sentence against the defendant shall be suspended.

The charge of failure to report among the facts charged in the instant case is acquitted.

Criminal facts

The Defendant is a lessee or manager of the (trade name omitted) Yaeong-gu (Seongsan) Yaeong-do). Nonindicted 1, an employee of the Defendant, on August 21, 1995, allowed the Defendant to enter Nonindicted 2 (19 years of age) and two (2) persons, who are minors, in relation to the Defendant’s business of the said Yeng-gu (Seongsan-dong) around

Summary of Evidence

1. Statement by the defendant in this court;

1. Statement by Non-Indicted 1 at this Court

1. Each statement made by the prosecutor and the assistant judicial police officer concerning the defendant and non-indicted 1 in each interrogation protocol of the suspect;

1. Statement of statement concerning the number of stuffs prepared by the judicial police assistant;

1. Each statement in each statement written in the last heading, Nonindicted 2, and the last heading

1. Copy of the monthly rent contract bound in the investigation records, and each statement of the permit;

Application of Statutes

1. Relevant provisions of punishment;

Article 79, Article 77 subparag. 5 and Article 31 of the former Food Sanitation Act (amended by Act No. 5099 of Dec. 29, 195), Article 42 [Attachment Table 13] subparag. 9 (Selection of Fine) of the former Enforcement Rule of the Food Sanitation Act (amended by Ordinance of the Ministry of Health and Welfare No. 110 of Aug. 31, 1995)

1. The volume of punishment;

At the time of the crime above, the defendant was entrusted to the above non-indicted 1, who is an adult employee of the above danran, but the above non-indicted 1 provided alcoholic beverages by allowing the above non-indicted 2, etc., who had found the above business place, to enter the above business place without confirming their age, and without confirming their age. After drinking, the above non-indicted 2, etc. was arrested by committing a violation of the Punishment of Violences, etc. Act in the above business place near the above business place after drinking, and the above non-indicted 2, etc. became incidental to this case. The relatives of the above non-indicted 2, etc. and the above non-indicted 1, who entered the above business place, were both adults and the above non-indicted 2, etc., and were almost similar to the above non-indicted 2, etc. in terms of increase, appearance and appearance, etc. of majority, and the defendant did not have any previous history of punishment and was able to repent their depth about the crime of this case, and the defendant was not sentenced to a fine within the above 500 million won.

1. Suspension of sentence;

Article 59(1) of the Criminal Act ( considered the first crime, the background and result of the instant crime, the fact that the situation is obvious, etc.)

The grounds of innocence

1. Summary of the facts charged in the instant case

The summary of the facts charged in the instant case is that the Defendant, on June 5, 1995, leased the said danran bar from Nonparty 1, the business license holder of the (trade name omitted) Garan-Eup (commercial name omitted), and succeeded to the status of the said Garan as a business proprietor, and thus, reported this fact to the authorities within one month, and did not report this fact without justifiable grounds.

2. Determination on the above facts charged

A. The meaning of "the succession of business" under Article 25 of the former Food Sanitation Act (amended by Act No. 5099 of Dec. 29, 1995; hereinafter referred to as the "Food Sanitation Act")

Article 25 (1) of the Food Sanitation Act provides that "if a person who has obtained business permission under the provisions of the Food Sanitation Act transfers his business to another person, dies, or if there is a merger of juristic persons, the transferee, inheritor, the juristic person surviving the merger, or the juristic person established by the merger shall succeed to the status of the business operator," and Paragraph (2) of the same Article provides that "the person who takes over the whole of the business facilities according to the compulsory auction under the Civil Procedure Act, the auction under the Auction Act, the realization under the Bankruptcy Act, the sale of seized property under the National Tax Collection Act, the Customs Act or the Local Tax Act, or other corresponding procedures, shall succeed to the status of the business operator. In this case, the business permission for the previous business operator shall lose its validity, and Paragraph (3) of the same Article provides that "if the person who succeeds to the status of the business operator under the provisions of the above paragraph (1) or (2) violates this provision, he shall report it to the Minister of Health and Welfare or the Mayor/Do governor within one month, the person shall be punished

B. Whether the defendant succeeds to the status of business operator

(1) The facts charged of this case is based on the premise that the Defendant’s succession to the status of a business operator under Article 25 of the Food Sanitation Act constitutes the succession of the status of the proprietor under Article 25 of the Food Sanitation Act, on June 5, 1995.

(2) However, it is reasonable to view that the above person who leased and operated a danran bar does not constitute a person who succeeded to the status of a business operator under Article 25 of the Food Sanitation Act as seen below (c).

(c) Whether a lessee of a dan has succeeded to the status of business operator;

(1) Article 25 of the Food Sanitation Act provides four cases concerning succession to the status of a business operator: (a) transfer of business; (b) succession due to death; (c) merger; and (c) auction; and (b) transfer of business facilities by compulsory procedures, such as compulsory procedures. In the event a business facility of a danran is leased and operated, it is obvious in the legal text that the business facility of a dan is not applicable to cases of (a) occurrence, occurrence, and violence; and (b) therefore, it is a matter of whether

(2) However, the business transfer under the Commercial Act is distinguishable from the lease of business in which the former business property is transferred in a lump sum to a transferee and the status of a business operator is transferred, and thus the former business property is transferred in a lump sum, and such business transfer under the Commercial Act shall be applied as it is to the Food Sanitation Act unless there are special circumstances. Therefore, in this regard, it shall be interpreted that the former business property of a dan is not the premise of the succession to the status of the said business operator.

(3) In addition, in light of the fact that Article 25 (2) of the Food Sanitation Act stipulates the takeover of the whole business facilities by compulsory procedures such as auction as one of the succession to the status of the business operator, it is reasonable to deem that at least the requirements for the transfer of the business property to the succession to the status of the business operator are met, and it does not constitute the transfer of the business as succession to the status of the business operator.

(4) Furthermore, in order for a lessor to assume the responsibility for the failure to report on succession to the above business, at least in cases where the lessor, who is the business proprietor of the dan, did not cooperate in the procedure for succession to the status of the said dan, he/she may compel the lessor to implement the procedure for change of the name of permission under the above lease contract. Since the lessor of the danran bar, he/she cannot seek the implementation of the procedure for change of the name of permission directly for the said lessor (see Supreme Court Decision 93Da45831, May 13, 1994). In this regard, it is reasonable to view that the lease of the said dan alone does not constitute transfer of business as succession to the status of the said dan

D. Thus, the part of the facts charged of this case premised on the fact that the act of running a dan by leasing the above danran bar from the non-indicted 1, the business permission authority, does not fall under any place of succession to the status of the business operator under Article 25 of the Food Sanitation Act, and this constitutes a case where the crime is not committed, and thus, it shall be acquitted pursuant to the former part of Article

It is so decided as per Disposition for the above reasons.

Judges Han Han-chul