[2] The case holding that false advertisements in mail order constitute deception of fraud

[3] Whether the prohibition of false or exaggerated advertisements under the Door-to-Door Sales, etc. Act can be applied to three advertisements (negative)

[2] The case holding that since information on the quality and price of a product owned by consumers in a mail order depends exclusively on the advertisement of a distributor, and consumer confidence in a TV home shopping company is created by his own high-level advertisement using a television image medium, the consumer's trust and expectation should be particularly protected, since it is not clear whether a third party's member or a inspection member supplied a television home shopping company is a product seed of a third party and artificially cultivated a product, it shall be contributed to an advertising broadcast, knowing that it is an ambiguous seed that the members of the above union developed a natural ginseng seed in a mountain stimulh and grow in a state of self-regulation, and it is a mountain ginseng that the members of the above union selected an excellent appraiser's appraisal as a member of the inspection team and made an advertisement as if it was done by the appraiser's appraisal, which is the most important factor in the decision of purchase, and thus, it constitutes a fraudulent act beyond the degree of fraud under the social norms.

[3] Article 3 (1) of the Door-to-Door Sales Act provides that the Act shall not apply to the goods or services prescribed by the Presidential Decree, which are inappropriate in light of the nature of the goods or services, and Article 2 (1) 1 of the Enforcement Decree of the same Act provides that those goods not produced by manufacturing business under the Korean Standard Industrial Classification Table prepared by the Statistics Act, as agricultural products, fishery products, livestock products, forest products, and mineral products, are one of the "goods or services prescribed by the Presidential Decree" under Article 3 (1) of the Door-to-Door Sales, etc. Act. It is clear that the goods or services fall under the three forest products or agricultural products and simply constitute prior selection and packaging, and they do not change into the new products by manufacturing activities. Thus, Article 60 (3) and Article 18 (2) of the same Act prohibiting false or exaggerated advertisements cannot be applied to advertisements placed in accordance with Article 3 of the same Act

1. As to fraud

Comprehensively taking account of the evidence duly examined and adopted by the first instance court, the facts that the defendant supplied Sam-gu shopping company (hereinafter referred to as the "Yong-gu shopping"), which is an object sold through an advertisement broadcast such as indicated in the facts charged, are used by Nonindicted 1 to artificially transplant the seeds derived from mountain ginseng on a multiple-year basis, and artificially cultivated them. The defendant was fully aware of such facts. The defendant was supplied to Sam-gu shopping by lending the name of the Gangwon-Namnam Agricultural Cooperative, and was not a member of the association or inspection member of the above association, and the defendant was not a member of the association or the inspection member of the advertisement, and the testimony of Nonindicted 2 presented in the advertisement are also false contents. Nevertheless, it is sufficient that the defendant, together with Nonindicted 2, a member of the association, made contributions to the broadcasting, designated the contents of the product to be sold by the above members of the association, and made it possible for each member of the association to use the appraisal of the product from an objective point of view that the defendant sold the product to the members of the association.

On the other hand, deception as a requirement for fraud means any affirmative and passive act that causes mistake to all affirmative and passive acts that discharge of the fiduciary duty and good faith to each other in property transactions. The essence of fraud is the acquisition of property or pecuniary benefits by deception and does not require that real property damage would occur to the other party. In general, the mere exaggeration in the publicity and advertisement of the goods, and the mere exaggeration in the advertisement, and the false representation in the advertisement would be lack of deception as long as it may be acceptable in light of the general commercial practices and the good faith principle. However, if specific facts about important matters in the transaction are falsely notified in a manner that would be subject to criticism in light of the fiduciary duty in the transaction, it constitutes deception in fraud beyond the limits of exaggeration and false advertisements (see, e.g., Supreme Court Decision 91Do2994, Sept. 14, 1992).

However, information on the quality and price of the goods held by consumers in the mail order is necessarily dependent on the advertisement of the distributor. The consumer's trust in TV home shopping business, such as the shopping in this case, is created by his own high-level advertisements by using the video media of TV, and the consumer's trust and expectation in this case should be particularly protected. In light of the above facts, inasmuch as the above advertising act of the defendant is possible to ascertain the truth and deceives the quality of the goods that are the most important factor in the decision of purchase, and the degree of the deception is exceeded that of the manner that can be socially acceptable, and thus, it cannot be said that it constitutes deception in fraud. Further, consumers are purchasing by deceiving the above false advertising by the defendant etc., and as long as the causal link between the false advertising and the consumer's purchase is recognized, it does not affect the establishment of fraud.

Therefore, the judgment of the court below which affirmed the judgment of the court of first instance which found guilty of the facts charged of the fraud of this case is just, and there is no violation of the rules of evidence, incomplete deliberation, or misapprehension of legal principles as to deception and causation in fraud, as alleged in the grounds of appeal. The ground of appeal

2. On the violation of the Door-to-Door Sales, etc. Act (hereinafter referred to as the “Act”).

The court below maintained the first instance judgment convicting the Defendant by applying Article 60 subparag. 3 and Article 18(2) of the Act, and Article 30 of the Criminal Act to the facts charged that the Defendant, in collusion with Nonindicted 2, had Sam-gu shopping in collusion with Nonindicted 1 make an advertisement by expressing any false fact as to the type of goods, or by making any indication that is remarkably superior or more favorable than the actual ones, as stated in the facts charged.

However, Article 3(1) of the Act provides that the Act shall not apply to the goods or services prescribed by the Presidential Decree that are inappropriate in light of the nature of the goods or services, and Article 2 subparag. 1 of the Enforcement Decree of the Act provides that those goods not produced by the manufacturing industry under the Korean Standard Industrial Classification Table prepared in accordance with the Statistics Act, as agricultural products, fishery products, livestock products, forest products, or mineral products, are one of the "goods or services prescribed by the Presidential Decree" under Article 3(1) of the Act. Thus, even based on the facts charged itself, it is evident that even according to the facts charged, only constitutes the forest products or agricultural products in this case, and only they do the processing activities that do not change the essential nature of the goods, such as selection, packing, etc., and they are not converted into new products by manufacturing activities. As such, Article 60 subparag. 3 and Article 18(2) of the Act prohibiting false or exaggerated advertisements

Nevertheless, the judgment of the court below that found the above facts guilty by applying the above legal provisions is erroneous in the misunderstanding of legal principles as to the subject of exemption from application of Article 3 of the Act, and on the other hand, the court below found the fraudulent act of this case and the violation of the law as a commercial concurrent act, and found all of them guilty. The case where only a part of them is found guilty is different in the sentencing conditions, and the judgment is affected by the conclusion of the judgment (see, e.g., Supreme Court Decisions 94Da2608, Sept. 29, 1995; 98Da4490, Apr. 25, 2000). The ground of appeal on this point is with merit.

3. Therefore, 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 Park Jae- Jae (Presiding Justice)