[방문판매등에관한법률위반][공2002.6.1.(155),1197]
[1] The case holding that the operation of an Internet shopping mall constitutes "act of allowing subscribers of a multi-level organization to arrange sales of goods" under Article 45 (2) 2 of the Door-to-Door Sales, etc. Act in light of its operation method
[2] In a case where a judge who has issued a summary order has participated in the judgment of the court of first instance in the procedure of a formal trial, whether it constitutes the ground for exclusion under Article 17 subparagraph 7 of the Criminal Procedure Act
[1] The case holding that where the operator of the Internet shopping mall sells the Internet shopping mall operation program to a new member in the manner that he/she pays a certain number of new members per household, and the recommendation member purchases the Internet shopping mall operation program by joining a certain number of new members on the recommendation of the existing member, the act of selling the Internet shopping mall operation program to a new member in the consecutive and phased manner according to the distribution rate differentiated from him/her and each household, constitutes "act of allowing the member to arrange the sale of goods to a multi-level organization" under Article 45 (2) 2 of the Door-to-Door Sales, etc. Act
[2] The summary procedure and the trial procedure of the first instance, initiated by the defendant or the public prosecutor upon the request for formal trial, are different only from each other in the same instance. Thus, it cannot be deemed that the summary order does not correspond to the previous trial of the first instance court, but constitutes a cause for exclusion because the judge, who issued the summary order, participated in the first instance trial procedure of the first instance court, and therefore, is a judge under Article 17 subparagraph 7 of the Criminal Procedure Act, who is involved in the previous trial or in the basic investigation and trial of the case.
[1] Article 45 (2) 2, Article 59 (1) and Article 63 of the Door-to-Door Sales, etc. Act / [2] Article 17 subparagraph 7 of the Criminal Procedure Act
Defendant 1 and two others
Defendants
Attorney Kim Sung-soo
Seoul District Court Decision 2001No11555 delivered on January 30, 2002
All appeals are dismissed. As to Defendant 1, 60 days out of the number of detention days after the appeal shall be included in the original sentence.
Defendant 1 and his defense counsel’s grounds of appeal (if the Defendant’s supplemental appellate brief was not submitted after the lapse of the period, to the extent it supplements the grounds of appeal).
1. According to the reasoning of the judgment below, Co-Defendant 1, 2, and co-defendant 2 established the Internet homepage, and purchased i-bweb in 3.50,00 won, which is an Internet shopping mall operation program sold by Defendant 3 corporation, with a fixed number of members registered as 1.25 million won, and if goods are purchased in 2 years or more in shopping mall, the company pays the fixed number of members, and if new members are able to register new members through recommendation, 40,000 won per member can be seen as 70,000 won per recommendation, and if new members are purchased in 1-60,000 won and new members are purchased in 20,000 won from 1-6,000 won to 200,000 won, the court below held that the new members can be seen as purchasing new goods from 20,000 won to 20,000 won by using the same distance of 1-60,000 won,00 won.
In light of the records, the judgment of the court below is just and acceptable, and there is no error of law in interpreting and applying the Door-to-Door Sales, etc. Act. The grounds for appeal pointing this out shall not be accepted.
In addition, in the grounds of appeal, the opinion of the Fair Trade Commission on November 12, 2001 about Article 45 (2) 2 of the Door-to-Door Sales, etc. Act is not legally binding as a interpretation of the above provision, and it is after the crime of this case. In addition, the grounds of appeal to the effect that the defendants' act was erroneous as not constituting a crime under the Act and subordinate statutes, and that there is a justifiable reason for mistake cannot be accepted.
2. The summary trial procedure and the trial procedure of the first instance, initiated by the defendant or the public prosecutor upon the request for formal trial, are different only from each other in the same instance. Thus, it cannot be deemed that the summary order does not correspond to the previous trial of the first instance court, but constitutes a cause of exclusion because the judge, who issued the summary order, participated in the first instance trial procedure of the first instance court, and therefore, is a judge under Article 17 subparagraph 7 of the Criminal Procedure Act, who is involved in the previous trial or in the basic investigation and trial of the case.
The grounds of appeal pointing out this point are not acceptable.
3. Conclusion
Therefore, all appeals are dismissed, and part of the detention days after the appeal shall be included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Yoon Jae-sik (Presiding Justice)