[1] Whether a "business operated mainly in the form of a small kitchen, bank, camera, etc. for the purpose of cooking and selling alcoholic beverages rather than cooking and selling food constitutes an act that can be lawfully conducted by a general restaurant business operator under the former Food Sanitation Act (affirmative), and whether a general restaurant business operator may be deemed as a violation of the former Food Sanitation Act which prohibits a "act of selling alcoholic beverages only" from engaging in business in the above form (negative)

[2] In a case where the Defendant, a general restaurant business operator, was prosecuted for violating the matters to be observed under the former Food Sanitation Act by mainly selling alcoholic beverages and liquors, the case holding that the court below erred by misapprehending the legal principles as to the principle of no punishment without law, which found him guilty on the ground that the aforementioned matters to be observed include the act of selling alcoholic beverages mainly with alcoholic beverages

[1] In full view of the regulatory structure, contents, etc. of the Food Sanitation Act and the Juvenile Protection Act, the most typical form of ordinary restaurant business under the former Food Sanitation Act (amended by Act No. 9932, Jan. 18, 2010; hereinafter the same) is a business that sells alcoholic beverages incidentally while cooking and selling food. However, while mainly selling alcoholic beverages, food is more prepared and sold, but customers are not allowed to singing, singing, or provide entertainment workers, and it is not classified as a separate business license under the former Food Sanitation Act and the Enforcement Decree of the Food Sanitation Act, and furthermore, the former Juvenile Protection Act (amended by Act No. 11179, Jan. 17, 2012; hereinafter the same) and the Enforcement Decree of the Juvenile Protection Act expressly define it as an ordinary restaurant business license under Article 3(4)2 of the Enforcement Decree of the Juvenile Protection Act. In light of this, it is reasonable to view it as a business license under the same type of business as a category of cooking and selling food service business for the same purpose.

[2] In a case where the Defendant, a general restaurant business operator, was prosecuted for violating the matters to be observed under the former Food Sanitation Act (amended by Act No. 9932, Jan. 18, 2010) by selling alcoholic beverages and alcoholic beverages mainly at a place of business in the form of entertainment, the case holding that the judgment below which found him guilty on the ground that the “act of selling alcoholic beverages only” included an act of selling alcoholic beverages mainly with alcoholic beverages with a license for an ordinary restaurant business, is erroneous in the misapprehension of the relevant statutes and the misapprehension of the legal principles as to

[1] Article 12(1) of the Constitution, Article 1(1) of the Criminal Act, Articles 36(2), 44(1), and 97 subparag. 6 of the former Food Sanitation Act (Amended by Act No. 932, Jan. 18, 2010); Article 2 subparag. 6(l) and 3 of the Enforcement Decree of the Food Sanitation Act; Article 57 and attached Table 17 of the Enforcement Rule of the Food Sanitation Act; Article 2 subparag. 5(b) [1] of the former Juvenile Protection Act (Amended by Act No. 11179, Jan. 17, 2012); Article 3(4)2 of the Enforcement Decree of the Food Sanitation Act / [2] Article 9 subparag. 4(1) of the former Food Sanitation Act (Amended by Act No. 9932, Jan. 18, 2010; Presidential Decree No. 974, Jul. 4, 2017>

Defendant

Defendant

Law Firm Jin Training, Attorneys Choi Han-soo et al.

Seoul Central District Court Decision 2011No2255 Decided October 19, 2011

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

The grounds of appeal are examined.

1. The principle of no punishment without the law requires that a crime and punishment shall be prescribed by law in order to protect an individual’s freedom and rights from the arbitrary exercise of the state’s penal authority. In light of such purport, the interpretation of penal provisions shall be strict, and it shall not be allowed to expand or analogically interpret the meaning of the explicit penal provisions in a manner unfavorable to the defendant without permission (see Supreme Court en banc Decision 92Do1428, Oct. 13, 1992, etc.

2. The Food Sanitation Act and its Enforcement Decree (hereinafter “the Act”) classify the types of food service business into rest restaurant business, general restaurant business, entertainment bar business, entertainment bar business, etc. The general restaurant business among them provides that “business of cooking and selling food and drinking together with meals is allowed to do so.” An entertainment bar business and entertainment bar business provide that “business of cooking and selling alcoholic beverages” is a business where customers are allowed to sing and singing, and a business where entertainment facilities are allowed to employ workers or install entertainment facilities (Article 36(2) of the Act and Article 21 subparag. 8 of the Enforcement Decree).

In addition, the above Act, the Enforcement Decree, and the Enforcement Rule thereof (hereinafter “Enforcement Rule”) stipulate the matters to be observed according to the type of each business license (Article 44(1) of the Act, Article 57 and [Attachment Table 17] of the Enforcement Rule, and Article 57 of the Enforcement Rule provides that “an act of selling only alcoholic beverages or cooking and selling mainly teas” shall not be conducted (Article 6(l) of the Enforcement Rule [Attachment Table 17] (Article 6-3) of the Enforcement Rule]. Separate from the above, Article 4(1) of the Act provides that a general restaurant operator or a public restaurant operator shall not engage in entertainment activities by employing entertainment visitors, or a general restaurant operator shall not engage in business activities other than permitted business activities, such as allowing customers to singing with sound and reflect facilities, and Article 97(6) of the Act provides criminal punishment for each offense of cooking and selling food and entertainment business under Article 5(1)5(2) of the Enforcement Decree of the Food Sanitation Act.

In full view of the structure, contents, etc. of the aforementioned statutes, the most typical form of an ordinary restaurant business presented under the statutes related to the Food Sanitation Act is a business that sells alcoholic beverages incidentally while cooking and selling food. However, although food is mainly cooked and sold by customers while selling alcoholic beverages, it is not classified as a separate business license under the Act and Enforcement Decree, and the Juvenile Protection Act and its Enforcement Decree expressly stipulate it as an ordinary restaurant business. In addition, the same type of business stipulated under the above Enforcement Decree of the Juvenile Protection Act, namely, “business operated in the form of business, such as small kitchen, cream, and cap, etc. mainly for cooking and selling food, it is reasonable to view that a general restaurant business operator who has obtained permission under the Food Sanitation Act belongs to the category of acts lawfully permitted by a general restaurant business operator among food service businesses under the Food Sanitation Act. Therefore, deeming that a general restaurant business operator’s act of selling alcoholic beverages only in the above form of business is not in violation of the principle of no punishment without law.

3. Nevertheless, the lower court affirmed the first instance judgment convicting the Defendant, who was a general restaurant business operator, of the instant facts charged, of violating the said code by selling alcoholic beverages and liquors at the instant place of business in the form of baltain, by interpreting that “an act of selling alcoholic beverages only” includes an act of selling alcoholic beverages mainly with a license for an ordinary restaurant business as in the instant place of business.

In light of the above legal principles, the judgment of the court below is erroneous in the misapprehension of legal principles as to the interpretation of related statutes and the principle of no punishment without law, which affected the conclusion of the judgment. The ground of appeal pointing this out

4. It is so decided as per Disposition by the assent of all participating Justices on the bench, and the case is remanded to the court below for a new trial and determination.

Justices Ahn Dai-hee (Presiding Justice)