식품위생법위반
The judgment of the court below is reversed.
Defendant shall be punished by a fine of KRW 2,000,000.
The above fine shall not be paid by the defendant.
1. The summary of the grounds for appeal (fact-finding) is that the Defendant only arranged and posted the equipment individually posted on the website by the consumers, but did not run an advertisement using the experience equipment, and only mentioned it as a medicine during the personnel management of the representative director of the I pharmaceutical company that manufactured the “F” as a drug, and the Defendant did not run an advertisement that could confuse F with medicine.
Nevertheless, the court below erred by misapprehending the facts charged.
2. Prior to the judgment on the grounds for appeal ex officio, the Prosecutor applied for amendments to the indictment with the purport that “the date of crime from the end of July 201 to March 5, 2014” was changed from the date of the instant facts charged to “from the end of July 3, 2011 to the end of March 5, 2014,” and since the subject of the judgment was changed by this court’s permission, the lower judgment was no longer maintained.
However, notwithstanding the above reasons for ex officio destruction, the defendant's assertion of misunderstanding of facts is still subject to the judgment of this court, which will be examined below.
3. Judgment on the defendant's assertion of mistake of facts
A. Article 13(1)1 of the Food Sanitation Act prohibits labeling or advertising that is likely to have efficacy or effect for the prevention and treatment of diseases, or to mislead or confuse them as medicine or health functional foods. Article 8(1)2 of the Enforcement Rule of the Food Sanitation Act provides that the labeling or advertising that is effective for the prevention or treatment of diseases under subparagraph 2 and the scope of advertisements that use experience equipment under subparagraph 13 of the Food Sanitation Act are included in the scope of advertisements prohibited by the Food Sanitation Act.
However, in interpreting the meaning of the above provision, it does not mean that the above provision prohibits all labeling and advertising about the pharmacological efficacy of food. Thus, even if such labeling and advertising are included, it is the efficacy of food.