1. As to the defendant's appeal

The Defendant did not file a statement of the grounds of appeal within the statutory period (the grounds of appeal filed by the Defendant was received on April 21, 2014, which was after the statutory period expired). The grounds of appeal are not indicated in the petition of appeal.

2. As to the Prosecutor’s Grounds of Appeal

A. Article 97 Subparag. 1 of the former Food Sanitation Act (amended by Act No. 10787, Jun. 7, 2011; hereinafter “Act”) provides that a person who violates Article 13(1) shall be punished, and Article 13(1) of the Act provides that no person shall make an advertisement, etc. that is likely to confuse with a drug with a drug. Article 13(2) of the Act provides that the scope of false labelling, exaggerated advertisements, and exaggerated packaging under paragraph (1) of the same Article and other necessary matters shall be prescribed by Ordinance of the Ministry of Health and Welfare.

Accordingly, Article 8 of the Enforcement Rule of the Act (amended by Ordinance of the Ministry of Health and Welfare No. 73, Aug. 19, 201) provides that the scope of false labelling and exaggerated advertisements under Article 13 of the Act shall fall under any one of the acts of indicating or informing the name, manufacturing method, quality, nutrition, raw materials, ingredients or use of food, etc., among acts of indicating or informing the information on containers, packages, radio, television, newspapers, magazines, music, videos, printed materials, printing materials, signboards, Internet, etc.

In full view of the contents of the relevant provisions, the term “advertisements likely to cause confusion with medicine” as prohibited by Article 13(1) of the Act refers to the act of expressing or informing information that is capable of treating a disease with respect to the quality, nutrition, raw materials, ingredients, etc. of food, etc. by radio, television, newspaper, magazine, music, video, printed materials, printing materials, signboards, the Internet, and other means. Therefore, even if a food seller explained and consulted with a specific buyer that the food has efficacy in treating a disease, it shall not be deemed as an “advertisement” prohibited under Article 13(1) of the Act, and it shall not be deemed as having repeatedly committed such acts.

B. The summary of the facts charged of the instant case is that no one may advertise that is likely to confuse food with medicine, but the Defendant sold the mixed beverage “○○○○○○” with the multi-stage sales system total plates of Nonindicted Co. 1, and made an advertisement that may cause confusion with medicine by explaining, consulting, etc. with respect to urology, urology, high blood pressure, and so on to three others, including Nonindicted Co. 2, etc.

The lower court acquitted the Defendant of the facts charged on the ground that the Defendant could not be deemed to have engaged in “advertisement” prohibited under Article 13(1) of the Act on the ground that the Defendant explained the efficacy of the instant food in the position of the multi-stage sales organization’s total sales organization.

Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, the above determination by the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles on the concept of "advertisement" under Article 13 (1) of the Act

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)