A. Legal principles

Article 37(4) of the former Food Sanitation Act (amended by Act No. 10787, Jun. 7, 2011; hereinafter the same) provides that a person who intends to engage in a food manufacturing business shall file a report as “by type of business or by place of business,” as prescribed by Presidential Decree, and the defendant has already completed a report under the name of Korea Food Sanitation Act, but the court below recognized the violation of the above provision against the defendant who has already reported the type of business by interpreting the meaning of the above provision only as requiring permission for the "by type of business." The above provision is inconsistent with the principle of clarity, or the court below erred in the misapprehension of legal principles that mislead the

B. Unreasonable sentencing

The sentence of the lower court (one year and six months of imprisonment, three years of suspended execution, and fine of five million won) is too unreasonable.

2. Determination:

A. Judgment on the misapprehension of legal principles

(1) In light of the legislative purpose, overall contents, structure, etc. of the penal law, if there is a reasonable interpretation standard that sets or limits the types of acts corresponding to the elements of punishment as a proper understanding and judgment of ordinary people who have the ability to discern things, it does not go against the principle of clarity in the penal law as required by the principle of no punishment without the law (see, e.g., Supreme Court Decision 2003Do3600, Nov. 14, 2003). In addition, the penal law should be strictly interpreted and applied in accordance with the language and text, and it shall not be excessively expanded or analogically interpreted in the direction unfavorable to the defendant, but the interpretation of the penal law does not exclude a teleological interpretation that takes into account the legislative purpose, purpose, legislative history, etc. of the law, unless it goes beyond the ordinary meaning of the law (see, e.g., Supreme Court en banc Decision 2005Do6525, May 12, 2006; 201Do2819, Feb. 2).

(2) 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 businesses under each subparagraph of Article 36(1) shall report to the Commissioner of the Korea Food and Drug Administration, a Special Self-Governing Province Governor, or the head of a Si/Gun/Gu by type of business or place of business, as prescribed by Presidential Decree. Article 36(1) of the same Act provides for "food manufacturing business" for the type of business to be reported. Thus, a person who intends to engage in a food manufacturing business shall file a report with the Special Self-Governing Province Governor or the head of a Si/Gun/Gu (hereinafter referred to as "report-receiving authority") pursuant to Article 25(1)1 of the Enforcement Decree of the Food Sanitation Act (amended by Presidential Decree No. 2380, Dec. 19, 2011; hereinafter the same shall apply) on the type of business subject to criminal punishment as stated in the attached Article 42(1) of the same Act, including a statement of business type and address.

In full view of all of the provisions of the above law, any person who intends to run a business prescribed by the Presidential Decree shall report to the Commissioner of the Korea Food and Drug Administration or the report-receiving authority for each type of business or each type of business under Article 37 (4) of the former Food Sanitation Act. The meaning of "any special case is to be reported to the Commissioner of the Korea Food and Drug Administration or each place of business, not the above report-receiving authority. In the case of the food manufacturing business as in this case, the above report-receiving authority is not the institution obligated to report under the Enforcement Decree of the Food Sanitation Act, but the Commissioner of the Korea Food and Drug Administration, and the report-receiving authority is required to report all the location and type of business of the place of business. Such interpretation is clear in light of the legislative purpose of the relevant law, the entire content and structure of the relevant law, and it is also the same in view of the general understanding and judgment of the general public with the ability to discern things. Furthermore, the defendant's assertion that there is no need to separately report each type of business in the business sector cannot be accepted.

B. Determination on the assertion of unfair sentencing

At present, considering that the amendment of the Act and subordinate statutes makes it possible to manufacture food only with the “registration” procedure, rather than the “report,” the following facts are considered: (a) the Defendant’s manufacturing and selling of the molds of this case manufactured without reporting by the Defendant; (b) the manufacturing and selling of the mixtures of this case in an unsanitary environment in which the Defendant may cause harm to the public health; (c) the Defendant: (a) manufacturing and processing of the mixture of domestic products in high prices; (d) manufacturing and processing of them; and (e) manufacturing and processing of them in domestic products similar to the molds of this case; and (e) manufacturing and selling them for the purpose of selling them at a price equivalent to the red molds of this case for the purpose of receiving and selling them; (b) the Defendant appears to have led the instant crime; and (c) the Defendant appears to have not been able to understand the circumstances up to the trial; and (e) taking account of the circumstances that the Defendant still did not go against the mistake; and (e) determining the sentencing of this case, the Defendant’s age, character and circumstances after the Defendant’s age, etc.

3. Conclusion

Therefore, since the defendant's appeal is without merit, it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Lee Jong-ho (Presiding Judge)

1) For example, a person who intends to import foods, etc. for the purpose of sale or business purposes is required to report to the Commissioner of the Korea Food and Drug Administration (Article 19(1) of the former Food and Drug Administration Act). However, among businesses to be reported under Article 37(4) of the Act, the type of business, which the Commissioner of the Korea Food and Drug Administration reported to the Commissioner of the Korea Food