[농산물품질관리법위반] 확정[각공2005.2.10.(18),305]
[1] The meaning of an indication that is likely to cause confusion or false indication of place of origin and the standard of determining whether the processed agricultural products of agricultural products under Article 17 subparagraph 1 of the Agricultural Products Quality Control Act are likely to cause confusion or confusion
[2] The case holding that the country of origin is indicated as "10% of the country of Korea (e.g., 100% of the country)" on packing materials of kimchi containing both fachisity in China constitutes a false indication of the country of origin of kimchi or an indication that may cause confusion with the country of origin of kimchi
[1] The labeling that is likely to cause confusion or false indication of the country of origin of the processed agricultural products under Article 17 subparagraph 1 of the Agricultural Products Quality Control Act includes not only the country of origin of the completed processed agricultural products, but also the labeling that is likely to cause confusion or confusion as well as the country of origin of the raw materials used in the processed agricultural products. Whether it is likely to cause confusion or confusion or not shall be determined on the basis of whether it is likely to cause mistake or confusion as to the country of origin from the perspective
[2] The case holding that the country of origin is indicated as "10% of the country of Korea (e.g., trend, heatless, al., al., al.)" on packing materials of kimchi containing both franchising in China and constitutes a false indication of the country of origin or an indication that may cause confusion with the country of origin of kimchi
[1] Article 17 subparagraph 1 of the Agricultural Products Quality Control Act / [2] Article 17 subparagraph 1 of the Agricultural Products Quality Control Act and Article 34-2 of the Agricultural Products Quality Control Act
Defendant 1 and one other
Prosecutor
Dried scrap metal
Jeonju District Court Decision 2004Gohap460 delivered on August 20, 2004
The judgment of the court below is reversed.
Defendants shall be punished by a fine of KRW 1,000,000.
When Defendant 1 fails to pay the above fine, the above Defendant shall be confined in a workhouse for the period calculated by converting 50,000 won into one day.
1. Summary of grounds for appeal by the public prosecutor;
In producing and selling kimchi, in which the defendants entered China as the country of origin labeling, the phrase "100% of the Republic of Korea (non-influence, drilling, heat-free, aliva, side, strike)" in the package of the package is clear that it constitutes an indication that may cause a false indication of origin or confusion because all of the raw materials of kimchi contained in the package of kimchi are Korean products from the perspective of the general public. Nevertheless, the court below erred by misapprehending the facts or by misapprehending the legal principles, which affected the conclusion of the judgment.
2. Determination:
A. Summary of the facts charged in this case
Defendant 1 is the representative director of Defendant 2, and Defendant 2 is a juristic person for the purpose of the kimchi manufacturing business. A person who sells or processes kimchi, which is an agricultural product processed from marking the country of origin pursuant to the Presidential Decree of the Minister of Agriculture and Forestry, shall not make a false or misleading indication. However, Defendant 1 shall not make a false or misleading indication of the country of origin, Defendant 1 shall not make a false or misleading indication, on November 18, 2003 and on November 28, 201 of the same year, Song-gu, Seo-gu, Song-gu, Song-gu, Seoul, 20-dong, 492-36, and 330 kilograms in the Republic of Korea from 50,000 won per 1 kilogram, 7,500 won per 7,500 won per 50,000 won per 20,000 won per 10,0000 won per 50,000 kilograms or per 10,500,000 kilograms per m of origin.
B. The judgment of the court below
As to the subject and method of indicating the origin of domestic processed agricultural products, Article 24 (1) 3 of the Enforcement Decree of the Agricultural Products Quality Control Act provides that "the country of origin of the raw materials shall be indicated in the order of content of the raw materials used for the processed agricultural products"; Article 24 (1) 1 of the Enforcement Rule of the Agricultural Products Quality Control Act provides that if the mixed ratio among the relevant raw materials used is not less than 50%, such raw materials shall be indicated in the order of mixing ratio if there is no raw materials of not less than 50%, and further, paragraph (2) provides that "if necessary to enhance the credibility of the processed agricultural products, it shall be indicated in the ingredients other than the raw materials subject to marking pursuant to the provisions of paragraph (1) of this Article, and it shall not be indicated in the order of mixing 2 of the aforesaid processed agricultural products or in the order of content of the raw materials, and it shall not be so high that there is a high proportion of less than 0% of the ingredients of kimchi among those so produced (i.e., g., g., 10% or g., g., m., ingredients of kimchi).
C. Judgment of the court below
Article 34-2 of the Agricultural Products Quality Control Act provides that "any person who violates the provisions of Article 17 shall be punished by imprisonment with prison labor for not more than five years or by a fine not exceeding 50 million won, and Article 17 subparagraph 1 of the same Act provides that "no person who sells or processes agricultural products or processed agricultural products subject to the marking of origin pursuant to Article 15 (1) shall make a false or misleading indication of origin, and Article 15 (3) of the same Act provides that "the matters necessary for the items subject to the indication of origin under the provisions of paragraph (1), method of indication, criteria for determining origin, etc. under the provisions of paragraph (1) shall be prescribed by the Presidential Decree." Article 23 of the Enforcement Decree of the Agricultural Products Quality Control Act provides that "the items subject to the indication of origin shall be determined and announced by the Minister of Agriculture and Forestry," and Article 27 subparagraph 1 of the Ministry of Agriculture and Forestry provides that "gimchi products which use any product subject to the marking of origin as main ingredients, which are likely to cause confusion as well as to cause confusion or confusion."
그런데 피고인들이 배추김치, 총각김치(알타리김치), 깍두기 등을 제조·포장함에 있어 사용한 포장재(수사기록 12쪽)에는 "고향의 맛 고향김치"라는 제목하에 맨 윗줄에 "◎원재료명 : 배추, 무, 고춧가루, 파, 마늘, 생강, 젓갈 등", 그 바로 아랫줄에 "◎원산지표기 : 한국산 100%(배추, 무, 열무, 알타리, 갓, 파)"라는 문구가 각 기재되어 있는 사실을 각 인정할 수 있는바, 위와 같은 포장재의 문구, 배열 등 형상에 비추어 보면 위 "한국산 100%"의 표시는 피고인들이 생산한 김치의 종류별 주재료 즉 배추김치의 경우 배추, 총각김치의 경우 알타리, 깍두기의 경우 무가 한국산임을 표시하는 것에 그치지 아니하고 나아가 그 포장재 안에 들어 있는 김치의 원재료로서 바로 그 위에 표시된 배추, 무, 고춧가루, 파, 마늘, 생강, 젓갈 등이 모두 한국산임을 나타내는 표시로 보이거나 그와 같은 오인을 일으킬 우려가 있는 것으로 보이기에 충분하다.
Therefore, the defendants' marking "100% of the Republic of Korea" on the packing materials of kimchi containing the large wave of China constitutes an indication that is likely to cause false marking or confusion about the country of origin of kimchi.
Nevertheless, the court below found the defendants not guilty of the charges of this case on the ground that the above indication is either 50% of the materials according to the kimchi type or less than 50% of the ingredients, which are less than 50%, and 2 of the mixed ratio is higher than 50%, and the common sense in the kimchi does not seem to be Korea, and the 's wave' in the common sense of origin indication in the above country of origin indication does not constitute the indication that is not likely to cause false indication or confusion on the ground that it does not mean the large wave contained in the good faith. Thus, the court below erred in the misapprehension of legal principles as to the mistake of facts or the false indication of origin under the Agricultural Products Quality Control Act, which affected the conclusion
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.
Criminal facts
Defendant 1 is a representative director of Defendant 2, and Defendant 2 is a corporation for the purpose of kimchi manufacturing business. A person who sells or processes kimchi, which is an agricultural product processed goods requiring an indication of origin pursuant to the Presidential Decree of the Minister of Agriculture and Forestry, shall not make a false indication of origin or make confusion thereof.
A. Defendant 1:
On November 18, 200 and December 28, 2003 of the same year, the Republic of Korea large 330 kilograms per kilogram 1 kilogram 7,350 won and 7,500 won per kilogram 1 kilogram 7,350, respectively from Jeon-dong and Jeonjin-gu, Jeoncheon-gu, Jeoncheon-si and Jeoncheon-gu, 492-36 on two occasions, and the country of origin of the relevant packing materials are manufactured with other raw materials, mixed with three kinds of kimchi, such as gralk Kimchi, and then the origin of the relevant packing materials is likely to be falsely labeled or confused with "one hundred percent per kilogram 1,100 won or more per kilogram 1,100 won or more per kilogram 1,500 won or more per kilogram 4,5050 kilograms or more per kilogram 50,000 won, or more for the same purpose as the domestic packing materials.
B. Defendant 2 Company:
Defendant 1, the representative director, at the above date and place, committed such a violation with regard to the business of Defendant 2.
Summary of Evidence
1. Each statement in the original judgment and the trial court of the defendant;
1. A statement of detection prepared by the special judicial police officer;
1. A written confirmation of the error;
1. Each report on investigation;
1. Photographs photographs at each place of detection;
1. Packing photographs;
1. Investigation report (specific for the production, sale and inventory of kimchi);
1. A copy of the date of production;
1. Copy of corporate register;
Application of Statutes
1. Article relevant to the facts constituting an offense and the selection of punishment;
(a) Defendant 1: Article 34-2 and subparagraph 1 of Article 17 of the Agricultural Products Quality Control Act (Selection of Fine);
(b) Defendant 2 corporation: Articles 37, 34-2, and 17 subparagraph 1 (Selection of Fine) of the Agricultural Products Quality Control Act;
1. Invitation of a workhouse;
Defendant 1: Articles 70 and 69(2) of the Criminal Act
Grounds for sentencing
Among the raw materials of kimchi produced by the defendant, the Republic of Korea was merely a wave used in good faith and the presiding fee was Korea. There was no reason that the Republic of Korea Tranchi contains the ingredients harmful to the human body. In indicating the country of origin of kimchi, the degree of violation of the indication is relatively minor, such as the defendant's failure to indicate it in Korea by specifically indicating the above large wave, etc. The degree of violation of the indication is relatively minor; the defendant did not have any criminal record for the same kind of crime; the defendant did not have any other criminal record for the same kind of crime; the defendant's age, character and character, environment, motive, means and consequence of the crime; and the circumstances after the crime, etc. shall be
Judges Choi Jin-bok (Presiding Judge)