Defendant

Defendant

Manwon Award

Attorney Choi Jin-Law in charge of the law firm training

Seoul Central District Court Decision 2010Gohap2444 Decided June 22, 2011

The defendant's appeal is dismissed.

1. Summary of the grounds for appeal (the mistake of facts and misapprehension of legal principles);

Article 57 and subparagraph 6 (l) of attached Table 17 of the Enforcement Rule of the Food Sanitation Act provides that "a general restaurant business operator shall sell alcoholic beverages only or prepare and sell teas mainly." The defendant does not fall under the above provision because he/she mainly sells alcoholic beverages, although he/she does not sell alcoholic beverages only.

2. Determination

A. Relevant statutes

1) The former Food Sanitation Act (amended by Act No. 9847 of Dec. 29, 2009)

Article 44 (Matters to be Observed by Business Operators)

(1) Business operators and their employees prescribed by Presidential Decree, such as food service business operators, shall observe matters prescribed by Ordinance of the Ministry for Health, Welfare and Family Affairs to manage sanitation and maintain order in business and promote

Article 97 (Penal Provisions)

Any of the following persons shall be punished by imprisonment for not more than three years or by a fine not exceeding 30 million won:

6. Any person who fails to observe matters to be observed by business operators under Article 42 (1) or 44 (1): Provided, That any person who violates insignificant matters prescribed by Ordinance of the Ministry for Health, Welfare and Family Affairs shall be excluded herefrom;

2) The former Enforcement Decree of the Food Sanitation Act (amended by Presidential Decree No. 22075, Mar. 15, 2010)

Article 21 (Types of Business)

The detailed types and scope of business under Article 36 (2) of the Act shall be as follows:

8. Food service business;

(a) Rest restaurant business: Business of cooking and selling mainly teas, ice cream, etc., or cooking and selling foodstuffs, such as fast food stores and powder stores, in which drinking is prohibited: Provided, That this shall not apply where hot water is added to cupped cups, instant teas, or other foodstuffs at convenience stores, Schlages, rest areas, or other places where foodstuffs are sold;

(b) General restaurant business: Business of cooking and selling foods, where drinking accompanied with meals is allowed;

(c) K bar business: Business of cooking and selling mainly alcoholic beverages, where customers are allowed to sing;

(d) Entertainment bar business: Business of cooking and selling mainly alcoholic beverages, where workers engaged in entertainment may be employed or entertainment facilities may be installed, and customers may sing or dance;

(e) Entrusted food service business: Business of cooking and providing foods in meal service facilities in accordance with a contract with a person who establishes and operates meal service facilities;

(f) Corery business: Business of manufacturing and selling mainly bread, rice tea, confection, etc., where drinking is not allowed.

Article 29 (Scope of Business Operators subject to Matters to be Observed)

(1) "Food service business operators and other business operators prescribed by Presidential Decree" in Article 44 (1) of the Act means the following business operators:

7. Food service business operators under subparagraph 8 of Article 21;

3) The former Enforcement Rule of the Food Sanitation Act (amended by Ordinance of the Ministry of Health, Welfare and Family Affairs No. 132 on August 12, 2009)

Article 57 (Matters to be Observed by Food Service Business Operators)

Matters to be observed by food service business operators, etc. under Article 44 (1) of the Act shall be as listed in attached Table 17.

Attached Table 17

6. Matters to be observed by food service business operators (excluding entrusted food service business operators);

(l) No business facility, other than those permitted or reported, shall be installed nor any of the following business activities:

(c) An act of selling alcoholic beverages only or cooking and selling teas mainly;

(b) Fact of recognition;

1) On November 5, 2009, the Defendant reported on the business of “the name of the business office: ○○○, the location: Seocho-gu Seoul Seocho-gu Seoul Metropolitan Government 2-dong (number omitted), and the type of business: food service business (type of business: general restaurant).”

2) From around that time, the Defendant established 8 Bar in the above “○○○○○” (hereinafter “instant place of business”), and installed 9 to 10 chairs for each part. The Defendant entered alcoholic beverages, such as Maskki, and alcoholic beverages, such as Mear, and one female employee farced in each part of the instant place of business. The Defendant farced a type of business in which the Defendant farcing the instant place of business by drinking alcohol to customers or drinking according to the customer’s farcing of alcohol.

3) On December 18, 2009, in the instant place of business, the Defendant stated that “The female employees, Nonindicted 1, 2, 3, and 4 were mainly sold alcoholic beverages and were exposed to the police during the process of drinking alcohol or drinking alcohol.” The Defendant stated that “The female employees, Nonindicted 1, 2, 3, and 4 were exposed to the police during the instant place of business in order to sell alcoholic beverages mainly to customers,” and that “The female employees were exposed to the police during the instant place of business in order to sell alcoholic beverages mainly at the instant place of business.” The Defendant stated that “The sales of alcoholic beverages mainly at the instant place of business would be appropriate.”

C. Determination

1) The Food Sanitation Act and subordinate statutes stipulate that ① a person who intends to engage in a food service business after classifying the types of food service business based on the type of food mainly sold, type of business, etc. shall designate the relevant type and have the person file a report, ② the requirements for the report and permission are different for each type of food service business, ③ the act of running a business outside the designated type of food service business is prohibited. The legislative purpose of the Food Sanitation Act is to promote national health by providing administrative guidance and supervision in line with the individual type of business and imposing a duty to comply in proportion to

Therefore, it is reasonable to actively prohibit the act of avoidance of regulations by reporting it as a subordinate type of business (a rest restaurant business or general restaurant business) and operating it as a superior type of business (a singran business or entertainment bar business) in fact is contrary to the legislative purpose of the Food Sanitation Act.

2) In light of the language and classification methods of each item of Article 21 subparag. 8 of the Enforcement Decree of the Food Sanitation Act, the term “business of cooking and selling alcoholic beverages can not be deemed as falling under an ordinary restaurant business.” ② As seen earlier, the instant business place is far away from the business type conducted by the ordinary restaurant business under the Food Sanitation Act, namely, “business of mainly cooking and selling food, and selling alcoholic beverages along with meals,” and mainly selling alcoholic beverages as an string, and a female employee sells food as an string, and such as having a female employee take the form of business conducted by the entertainment bar business. ③ The Defendant’s own assertion that “if a female employee who employs alcoholic beverages as an entertainment bar, he did not have to report as an ordinary restaurant as a matter of heavy taxation pursuant to the Individual Consumption Tax Act, it is reasonable to interpret the instant business place as including: (a) the act of selling alcoholic beverages with a license to engage in an ordinary restaurant business under the Food Sanitation Act; and (b) the act of selling alcoholic beverages with a license to engage in an ordinary restaurant business under the Food Sanitation Act.”

3) Therefore, Defendant’s assertion is without merit.

3. Conclusion

Thus, the defendant's appeal is without merit, and it is dismissed under Article 364 (4) of the Criminal Procedure Act.

Judges Kim Sung-ho (Presiding Judge) (Presiding Judge)