Defendants shall be punished by a fine of two million won.

When Defendant 1 fails to pay the above fine, the above defendant shall be confined in a workhouse for the period calculated by converting KRW 100,000 into one day.

In order to order the provisional payment of an amount equivalent to the above fine.

The Defendant’s criminal intent is also recognized in light of the instant product indication, “○○ red ginseng saving”, and the home shopping advertisements, etc. of the ○○ Ginseng Cooperative, which fall under the indication that may cause confusion as to the country of origin in light of trade norms based on the average person’s care, is obvious in light of the empirical rule, and do not indicate the fact that it was manufactured with local ginseng other than ○○○○.

2. Determination

A. Summary of the facts charged in this case

The Defendant ○○ Ginseng Co., Ltd. has a principal office in △△○○○○○ Group ( Address 1 omitted), and is a corporation engaged in the manufacture, sale, etc. of ginseng, and Defendant 1 is the head of the cooperative as the representative of the above ○○ Ginseng Cooperatives.

No person who sells or provides agricultural and fishery products or the processed products thereof after cooking shall place a false indication of the place of origin or place a mark likely to cause confusion as such.

Nevertheless, the Defendants, despite the fact that the raw ginseng harvested from △△○○○○○○○○○ Group was unable to make a product of the “sold ginseng” on the sole basis of the raw ginseng harvested from △△○○○ Group, mixed not less than 50% of the raw ginseng harvested in other domestic areas, and had the intention to manufacture and sell the “sold ○○○ red ginseng” product as if the ginseng harvested from △△○○○ Group was used as a special product.

1) Defendant 1

The Defendant: (a) around January 2010 to November 2013, at ○○○○○○○○○○○○○○○○○○○○○○○, ○○ Raw Ginseng and other local raw ginseng products mixed with red ginseng products made of domestic and local products; (b) 4,491; (c) 4,722; (d) 4,861; (d) 4,861; (4,355, total of 18,429, 276, 29, 275, and 276,435, and 300 (based on 552,870,000, 200) of ○○○○○○○○○○○○○○ Ginseng Products made of Ginseng Products, and (c) ○○○○○○○○○ Ginseng Products was put into the Internet Advertising Products Products, and ○○○○○○ Ginseng Products was marked into the Internet Packaging Products Products.

Accordingly, the defendant committed an act of falsely indicating the country of origin or an act of making an indication that may cause confusion.

2) Defendant ○○ Ginseng Cooperatives

The above defendant 1, a representative of the defendant corporation, committed an act of falsely indicating the origin or making an indication that may cause confusion as to the business of the defendant corporation.

B. Relevant regulations and legal principles

Pursuant to Article 14 and Article 6(1)1 of the Act on Origin Labeling of Agricultural and Fishery Products, the act of falsely labeling the country of origin or labeling that is likely to cause confusion is punished. In addition, according to Article 6(3) of the same Act, matters necessary for labeling, etc. that are likely to cause confusion as to the country of origin in violation of Article 6(1) shall be prescribed by Joint Ordinance of the Ministry of Oceans and Fisheries.

Accordingly, Article 4 [Attachment 5] of the Enforcement Rule of the Act on Origin Labeling of Agricultural and Fishery Products provides that "a mark that may cause confusion with the country of origin" means a mark that misleads the country of origin by putting a similar mark on packaging materials, sign signs, promotional materials, etc. in the indication column of origin, and stipulates that "domestic products" shall be indicated in the indication column of origin, and where the name of the country of origin is indicated in a large number of characters, such as the Gyeonggi-do Special Product, in which consumers can easily see, such as the front side of packing materials, it shall be one of the examples.

In full view of the contents of the relevant provisions, the act of using packaging materials with the name of the production area of domestic well-known special products is distinguishable from the “an act of falsely indicating the place of origin” as provided in Article 6(1)1 of the same Act and “an act of falsely indicating the place of origin.” In the indication column of origin, the act of using packaging materials with the name of the production area of domestic well-known special products constitutes an act of making an indication that may cause confusion as to the place of origin (see Supreme Court Decision 2013Do14586, Jan. 29, 2014).

On the other hand, "labels that may cause confusion as to the origin" means indications that are likely to cause confusion as to the origin of agricultural products in light of trade norms based on the average of the traders, i.e., the general trader, and that are likely to cause confusion as to the origin of agricultural products. Such indications that cause confusion include indirect and explicit indications that may cause confusion as to the origin of agricultural products (see Supreme Court Decision 2004Do2835, Jul. 22, 2004).

C. Judgment of the court below

1) Whether the country of origin was falsely labeled

In light of the following circumstances revealed by the record, i.e., (i) although the defendants used as the raw materials of the product of this case, the ginseng used as the raw materials of this case was mixed with cultivated and harvested in other areas than △△○○○Gun, there is no evidence to acknowledge that all of the ginseng was mixed with non-domestic products, and (ii) pursuant to Article 15(1) of the Ginseng Industry Act and Article 5(1) [Attachment Table 1] of the Enforcement Decree of the Act on Origin Labeling of Agricultural and Fishery Products, which applies mutatis mutandis in Article 3-2 of the Enforcement Decree of the same Act, if all of the raw materials used in the manufacture of domestic agricultural and fishery products are domestically produced, the origin may be indicated collectively as "domestic" or "domestic products", and (iii) the defendants indicated the name of the raw materials as "red ginseng" in the manufacture and sale of the product of this case, even if they indicated the product of this case as stated in the facts charged, there is no evidence to acknowledge it otherwise.

2) Whether there was a mark that is likely to cause confusion as to the origin

The court below duly adopted and examined the evidence as follows, i.e., ① the Defendants purchased ginseng from around January 201 to around November 2013 in the Republic of Korea and in other regions, and made the products of this case by mixing it with ginseng in ○○○ region. ② The Defendants introduced the product name “Korea special products” on the front right upper part of packing boxes produced for the sale of this case, and indicated the product name “○○○ Red Ginseng Co., Ltd. (Internet address omitted)” on the front part, and “○○○○○○○○ Ginseng Co., Ltd.” on the front part of this case’s product name “this case’s processed ginseng products with high quality indicated on red ginseng products in the region where it is difficult to ○○○○○○ Ginseng Co., Ltd. (hereinafter “○○○○○”) to see that the products of this case’s processed ginseng products with high quality indicated on the ginseng products with high quality in domestic ginseng products with high quality in terms of geographical content and red ginseng products in the region where the products of this case were produced.”

Therefore, the judgment of the court below which acquitted the charged facts of this case is erroneous in the misapprehension of legal principles, and the prosecutor's assertion is justified.

3. Conclusion

Therefore, since the prosecutor's appeal is well-grounded, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

1. Partial statement of the suspect interrogation protocol of the accused by the prosecution (including part of the accused's statement);

1. Part of the prosecutor’s statement concerning the Nonindicted Party

1. A survey report (verification of advertising words through Nonghyup Ginseng Co., Ltd.) and screen pictures attached thereto;

1. Product photographing photographs;

Defendant 1: Articles 14 and 6(1)1 of the Act on Origin Labeling of Agricultural and Fishery Products (Selection of Fines)

Defendant ○○ Ginseng Cooperatives: Articles 17, 14, and 6(1)1 of the Act on Origin Labeling of Agricultural and Fishery Products

1. Aggravation for concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Code

1. Detention in a workhouse (Defendant 1);

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

However, Defendant 1, as the first offender, recognized the instant act itself; since the country of origin indication of the instant product cannot be deemed to be false, the Defendants’ criminal intent and the degree of illegality recognition seems to be relatively less light; and Defendant 1’s age, character and behavior, environment, occupation, circumstance and content leading to the instant crime, and circumstances leading to the instant crime, etc., shall be determined as per Disposition in consideration of all the circumstances constituting the sentencing conditions indicated in the record, including the following circumstances.

Judges Kang Sung (Presiding Judge)