(영문) 대법원 2016.12.27.선고 2016두48102 판결

1. According to Articles 44(2)4, 75(1)13, and 82(1) of the former Food Sanitation Act (amended by Act No. 1402, Feb. 3, 2016; hereinafter “Food Sanitation Act”), no food service business operator may provide juveniles alcoholic beverages, and impose sanctions, such as suspending all or part of business for a fixed period not exceeding six months, or penalty surcharges not exceeding 200 million won, in lieu of business suspension.

Meanwhile, Article 82(2) of the former Enforcement Decree of the Food Sanitation Act (amended by Presidential Decree No. 26180, Mar. 30, 2015; Presidential Decree No. 26180, Mar. 30, 2015; hereinafter referred to as the "former Enforcement Decree prior to the amendment"), which provides for the standards for calculating penalty surcharges imposed in lieu of the disposition of business suspension pursuant to delegation of Article 82(2) of the Food Sanitation Act, provides that "The former Enforcement Decree of the Food Sanitation Act (amended by Presidential Decree No. 26180, Mar. 30, 201; hereinafter referred to as the "former Enforcement Decree prior to the amendment") shall revise the "Standards for Penalty Surcharges No. 2" in Article 53 [Attachment Table 1] to change the amount of penalty

Therefore, Article 53 [Attachment 1] 2 of the former Enforcement Decree of the Act applies to the imposition of penalty surcharges in lieu of the disposition of business suspension on the grounds that a food service business operator provided alcoholic beverages to juveniles prior to the enforcement of the revised Enforcement Decree.

2. According to the reasoning of the lower judgment, the Defendant, a food service business operator, was aware of the fact that the instant disposition imposing a penalty surcharge in lieu of the disposition of business suspension on November 16, 2014, which was prior to the enforcement of the amended Enforcement Decree, was rendered on the ground that the Plaintiff offered alcoholic beverages to juveniles on November 16, 2014. According to the legal doctrine as seen earlier, the instant disposition imposing a penalty surcharge on the above act of providing alcoholic beverages prior to the enforcement of the amended Enforcement Decree shall be governed by Article 53 [Attachment 1] [Attachment 2] of the Enforcement Decree of the amended Enforcement Decree,

3. Nevertheless, the lower court determined otherwise, on the premise that Article 53 [Attachment 1] [Attachment 1] 2 of the Enforcement Decree of the amended Act applies to the instant disposition, that the disposition of this case, which exceeds the “standards for the penalty surcharge”, was unlawful.

Therefore, the lower court erred by misapprehending the legal doctrine under Article 2 of the Addenda to the Enforcement Decree of the Amendment, thereby adversely affecting the judgment.

4. 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.