1. Determination as to the manufacturing business of unreported foods among the facts charged

A. According to the reasoning of the lower judgment, the lower court upheld the first instance judgment that found the Defendant guilty by applying Article 97 Subparag. 1 and Article 37(4) of the former Food Sanitation Act (amended by Act No. 10787, Jun. 7, 2011; hereinafter the same), Article 30 of the Criminal Act, as to the fact that the Defendant, among the facts charged in the instant case, conspired with Nonindicted 1, 2, and 3 and engaged in the food manufacturing business without reporting food manufacturing business to the competent authority from June 2012 to March 20, 2013.

B. According to Article 97 (1) 1 of the former Food Sanitation Act, a person who violates Article 37 (4) of the former Food Sanitation Act shall be punished by imprisonment with labor for not more than three years or by a fine not exceeding 30 million won. Article 37 (4) of the former Food Sanitation Act provides that a person who intends to engage in a business prescribed by Presidential Decree among the businesses provided for in each subparagraph of Article 36 (1) shall report to the Commissioner of the Korea Food and Drug Administration, the Governor of the relevant Special Self-Governing Province, or the head of the relevant Si/Gun/Gu by type of business or place of business, as prescribed by Presidential Decree. Article 25 (1) 1 of the former Enforcement Decree of the Food Sanitation Act (amended by Presidential Decree No. 2380, Dec. 19, 201; hereinafter the same) provides that a person who intends to engage in a business under Article 21 (1) 1 of the former Food Sanitation Act (amended by Presidential Decree No. 2100, Jun. 7, 2019, 201).

According to the contents of the former Food Sanitation Act and the Enforcement Decree thereof, the unreported food manufacturing business prior to December 8, 2012 is punished pursuant to Article 97 subparag. 1 and Article 37(4) of the former Food Sanitation Act, and Article 25(1)1 of the Enforcement Decree thereof. However, from December 8, 2012 when the amended Food Sanitation Act and the Enforcement Decree thereof enter into force, the unreported food manufacturing and processing business was changed from the category of business to the registered type of business, and thus, it shall not be punished pursuant to Articles 97 subparag. 1 and 37(4) of the former Food Sanitation Act and Article 25(1)1 of the Enforcement Decree thereof. Meanwhile, Article 95 subparag. 2-2 of the Food Sanitation Act, amended by Act No. 11986, Jul. 30, 2013, which was enforced from the date of such change of the registered type of business.

Examining the Defendant’s business of manufacturing unreported foods from June 2012 to December 7, 2012, the lower court is justifiable in maintaining the first instance judgment convicting the Defendant of the aforementioned parts on the grounds stated in its reasoning. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the unreported food manufacturing business.

However, from December 8, 2012 to March 20, 2013, Defendant’s non-reported food manufacturing business was changed from the revised Food Sanitation Act and from December 8, 2012 when its Enforcement Decree became effective to the registered type of business, and thus, Defendant’s act of manufacturing and processing unreported food was not punished pursuant to Article 97 subparag. 1 and Article 37(4) of the former Food Sanitation Act and Article 25(1)1 of the Enforcement Decree thereof. The lower court’s maintenance of the first instance judgment that found Defendant guilty is erroneous in the application of statutes.

C. The non-reported food manufacturing business of this case is an inclusive crime that recognizes the unity and continuity of a criminal's criminal intent. As seen earlier, although the Food Sanitation Act amended from December 8, 2012 to March 20, 2013 and its Enforcement Decree were not punishable, it is illegal for the court below to found the non-reported food manufacturing business guilty of all including the part. Thus, the part as well as the remaining parts related to a single comprehensive crime should be reversed together.

2. Determination as to the sale of unreported manufactured food among the facts charged

A. According to the reasoning of the lower judgment, the lower court upheld the first instance judgment convicting the Defendant of violating Article 94 Subparag. 1 and Article 4 Subparag. 7 of the Food Sanitation Act, and Article 30 of the Criminal Act, as to the fact that, among the facts charged in the instant case, the Defendant conspired with Nonindicted 3 and sold food manufactured by a person who failed to report food manufacturing business from June 2012 to March 20, 2013.

B. According to Article 94 subparag. 1 of the Food Sanitation Act, a person who violates Article 4 of the same Act shall be punished by imprisonment with labor for not more than seven years or by a fine not exceeding 100 million won, or both of them shall be prohibited. Article 4 subparag. 7 of the Food Sanitation Act prohibits a person who is not a business operator from selling “those manufactured, processed, or subdivided” and Article 2 subparag. 10 of the former Food Sanitation Act provides that a business operator “a person who has obtained a business license pursuant to Article 37(1) or has filed a business report pursuant to Article 37(4) of the same Act.” However, as seen above, Article 37(5) of the former Food Sanitation Act was amended by Act No. 10787 on June 7, 201, Article 36(1) of the former Food Sanitation Act or a person who intends to operate a business prescribed by Presidential Decree among those referred to in each subparagraph of Article 36(1) of the same Act shall be registered with the Commissioner of the Korea Food and Drug Administration or the Special Self-Governing Province.”

Examining the Defendant’s sales of unreported foods from June 2012 to December 7, 2012, the lower court is justifiable in maintaining the first instance judgment convicting the Defendant of the aforementioned parts on the grounds stated in its reasoning. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the sale of unreported foods.

However, with respect to the sale of unreported foods from December 8, 2012 to March 20, 2013, as seen earlier, since the revised Food Sanitation Act and the Enforcement Decree thereof were changed from December 8, 2012 to the registered type of business, the act done from that time cannot be punished as “sale of food manufactured by a person who fails to report food manufacturing business,” and can only be punished as “sale of food manufactured by a person who fails to register food manufacturing business,” and only can it be punished as “sale of food manufactured by a person who sells food manufactured by a person who fails to register food manufacturing business.”

C. The phrase “the sales of food manufactured by a person who does not report food manufacturing business” and “the sales of food manufactured by a person who does not register food manufacturing business” are identical with the penal provision, but the sales of unreported food in this case should be sentenced to a single punishment in relation to the two concurrent crimes under the former part of Article 37 of the Criminal Act. Thus, the judgment of the court below should be reversed in its entirety.

3. Conclusion

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 Lee Sang-hoon (Presiding Justice)