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

[2] Whether the term “food” under the Food Sanitation Act is applicable to the fishery products that can be used for food, as fish or birds collected and caught by the sea, river, etc. from the sea or river before they are processed or manufactured (affirmative in principle)

[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 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] [2] [3] Supreme Court Decision 2015Do2477 Decided March 15, 2017 (Gong2017Sang, 814) / [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 2014No1060 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 in the instant case is that the Defendant engaged in the food transportation business and did not report the food transportation business while running the food transportation business, which raises profits equivalent to KRW 500,000 per month on the average, without satisfying the facility standards, such as transporting three fish, ju, ju, agricultural ju, red sea, etc. from August 28, 2006 to June 27, 2013 by transporting them to restaurants, such as 50,000 places where fish, such as 50,000, ju, ju, farming, and red sea, etc., in a mountain.

The lower court upheld the first instance judgment that acquitted the Defendant on the ground that the Defendant’s act of transporting active fish at the buyer’s request falls under “the case of transporting food for sale at the business operator’s place of business” under the proviso of Article 21 subparag. 4 of the Enforcement Decree of the Food Sanitation Act and does not fall under the case of reporting food transportation business.

2. The key issue of the instant case is whether the Defendant’s act of transporting fishery products, such as active fish, is subject to reporting of food transportation business, and the issue is whether fishery products such as active fish constitute food under the Food Sanitation Act, and this is examined.

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 and text of the statutes related to food sanitation, the text and structure of the statutes related to food sanitation, the food habits of our society, and the concept of universal food, etc., fishery products, which 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 (see Supreme Court Decision 2015Do2477, Mar. 15, 2017).

B. Fishery products, such as luminous, Do block, farming, red sea, etc., transported by the Defendant in the instant case constitute food under the Food Sanitation Act, which are cultivated or imported from China and Japan and sold for food.

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 case of transporting foods for the purpose of sale at the business office of the relevant business operator” in the said proviso means the case where the business operator transports foods for the purpose of sale at his/her own business office. Furthermore, it cannot be deemed that “the case of transporting foods for the purpose of sale at the purchaser” in the process of selling foods 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 does not mean that a food business operator is equipped with necessary facilities as a food business operator. It is reasonable to interpret such provision in light of the following: (a) the case of transporting foods that are likely to be decomposed or changed for sale at a business office and the case of transporting such foods to the purchaser while selling such foods.

B. The Defendant, without filing a report on food transportation business, sold and transported fishery products, such as luminous and ju block, to a restaurant, including a frequency in Ulsan city, which is not the Defendant’s place of business. This is a business 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, which provides for the exception of reporting food transportation 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 shall be deemed that the Defendant sold and transported fishery products for profit-making purposes. Therefore, the Defendant’s act without filing a report on food transportation business pursuant to Article 37(4

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 facts charged. 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

5. 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 Kim Jae-hyung (Presiding Justice)