[1] Whether a person who takes over a general restaurant business without fulfilling his/her duty to report the change in the area of the place of business is subject to punishment due to nonperformance of his/her duty to report under the former Food Sanitation Act (affirmative)

[2] The case affirming the judgment below holding that where the defendant who acquired a general restaurant without fulfilling his duty to report even though the area of the business was significantly changed, and continues to conduct the above business without fulfilling his duty to report, the crime of violation of the former Food Sanitation Act is established due to the failure to report business

[1] Article 22(5) of the former Food Sanitation Act (wholly amended by Act No. 9432 of Feb. 6, 2009) and Article 13(1)7 and Article 13-2 subparag. 3-2 of the former Enforcement Decree of the Food Sanitation Act (wholly amended by Presidential Decree No. 21214 of Dec. 31, 2008) provide that when a person who has reported his/her business transfers his/her business, intends to conduct a general restaurant business subject to reporting or to modify important matters, such as the size of the relevant business place, he/she shall report it to the head of the Gu, etc., and Article 77 subparag. 1 of the same Act provides that a person who has violated the above duty to report shall be punished by imprisonment for not more than three years or a fine not exceeding 30 million won, and Article 25(1) of the same Act provides that a transferee shall succeed to the status of the business operator, and the purport of the above duty to report and punishment provisions shall also be punished if the person fails to report his/her business place its business without reporting.

[2] In a case where the Defendant, even though he was aware of the fact that the area of the place of business reported to the head of the original competent district office was 37.29 square meters and considerably changed to approximately 132 square meters, did not perform his duty to report, continued the above business for about one year without performing such duty to report, the case affirming the judgment below which held that the Defendant did not succeed to the duty to report the area of the previous place of business, but was in violation of the former Food Sanitation Act (wholly amended by Act No. 9432 of Feb. 6, 2009) due to the business failure to report during the above period of business

[1] Article 22(5) (see current Article 37(4)), Article 25(1) (see current Article 39(1)), Article 77 subparag. 1 (see current Article 97 subparag. 1), Article 13(1)7 (see current Article 25(1)8), Article 13-2 subparag. 2 (see current Article 26 subparag. 4) of the former Food Sanitation Act (wholly amended by Act No. 9432 of Feb. 6, 2009), Article 22(5) (see current Article 39(1)), Article 77 subparag. 1 (see current Article 97 subparag. 1) of the former Food Sanitation Act (Amended by Presidential Decree No. 21214 of Dec. 31, 2008); Article 13(1)7 (see current Article 25(1) and Article 13 subparag. 2(3) of the former Enforcement Decree of the Food Sanitation Act (Amended by Act No. 9432 of Feb. 6, 20009)

Defendant

Defendant

Busan District Court Decision 2009No3850 Decided April 8, 2010

The appeal is dismissed.

The grounds of appeal are examined.

According to Article 22(5) of the former Food Sanitation Act (wholly amended by Act No. 9432, Feb. 6, 2009; hereinafter the same), Article 13(1)7 and Article 13-2 subparag. 3-2 of the former Enforcement Decree of the Food Sanitation Act (wholly amended by Presidential Decree No. 21214, Dec. 31, 2008); where a person who has reported his/her business transfers his/her business, intends to operate a general restaurant business subject to reporting and to modify important matters, such as the size of the business place, etc., he/she shall report such to the head of the Gu, etc.; Article 77 subparag. 1 of the former Food Sanitation Act provides that a person who violates the above duty to report shall be punished by imprisonment with labor for not more than three years or by a fine not exceeding 30,000 won; Article 25(1) of the former Food Sanitation Act provides that the transferee shall succeed the status of the business operator if the person fails to report his/her business place of business without reporting any change.

According to the reasoning of the judgment below, in operating a general restaurant (hereinafter “instant restaurant”) with the name of “○○ restaurant” in the middle-gu in Busan Metropolitan City (detailed address omitted), the summary of the facts charged is as follows: although the size of the place of business, which was reported to the head of Busan Northern District Office, was changed to approximately 132m2m2, it was operated without making a report; and the Defendant’s assertion on it was changed from November 22, 2007 to November 5, 2008, only the relocating operator changed the size of the instant restaurant, and there was no change in itself. Accordingly, according to the evidence duly adopted by the court below, the above period of business, which was charged, can be known that the Defendant did not report the change of the size regardless of whether the size of the restaurant was changed by a public official belonging to the Busan Northern District Office, and the Defendant did not report the change in the size of the restaurant during the above business period. Thus, in light of the above legal principles, the Defendant did not report the change in the size of the restaurant.

Therefore, the court below erred on the premise that the defendant succeeded to the duty to report the change of the business area of the previous business operator but failed to perform such duty. However, the conclusion that the defendant's act constitutes a violation of the former Food Sanitation Act due to the business of failing to report the act is just, and contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles on the duty to report the change of the business transferee under Articles 22 (5) and 25 (1) of the former

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Dai-hee (Presiding Justice)