Article 26 of the former Petroleum Business Act (amended by Act No. 7209, Mar. 22, 2004; hereinafter the same) prohibits anyone from producing or selling pseudo petroleum products by mixing petroleum products with other petroleum products, mixing petrochemicals with other petrochemicals. Article 30 of the former Enforcement Decree of the Petroleum Business Act (amended by Presidential Decree No. 18473, Jul. 20, 2004; hereinafter the same shall apply) prohibits anyone from using or selling pseudo petroleum products as fuel for gasoline or light oil as fuel under Article 2 subparag. 1 of the Automobile Management Act, and machinery and vehicles under the subparagraphs of Article 2 subparag. 7 of the Enforcement Decree of the former Enforcement Decree of the Automobile Business Act (hereinafter referred to as “automobile”) which can only be used for fuel for pseudo petroleum products under Article 2 subparag. 8 of the former Enforcement Decree of the Petroleum Business Act (excluding energy provided for in each subparagraph). The purport of the above provision is to prohibit anyone from using or selling pseudo petroleum products as fuel for manufacturing or selling pseudo petroleum products.

According to the records, the document of this case is merely a mixture of about 33% of petroleum products, such as Toluene, which is a petroleum chemical substance, and about 4% of alcohol content, and is manufactured as an internal washing system of an engine for automobiles. The volume is 0.5 liter per disease. The standard quantity is 0.65 liter per gasoline, and 0.5 liter sold at 2,000 won per disease. The manufacturing cause of pseudo petroleum products under Article 26 of the former Petroleum Business Act is that the ordinary gasoline is higher than other petrochemicals, and it is difficult for the Defendant to conclude that the manufacturing price of gasoline at the time of the document of this case is below 1,50 won per 1 liter, while the documentary price of this case is 0 liter per 1 liter, 400 liter, and 5 liter per disease or 60 liter per disease, which is more than the average fuel price of this case.

If so, the court below erred by misapprehending the legal principles as to automobiles using gasoline or light oil.

The court below should have deliberated on whether there are objective circumstances to recognize that the green documentary of this case was produced or sold for the purpose of using it as fuel, and should have judged whether it was a pseudo petroleum product under Article 26 of the former Petroleum Business Act. However, the court below judged that the green documentary of this case constitutes a pseudo petroleum product under Article 26 of the former Petroleum Business Act only with the employed evidence and found the defendant guilty of violating the former Petroleum Business Act. Thus, the court below erred in the misapprehension of legal principles as to Article 26 of the former Petroleum Business Act and interpretation and application of Article 30 of the former Enforcement Decree of the Petroleum Business Act, which affected the conclusion of the judgment. The ground of appeal pointing this out has merit.

Therefore, without examining the remaining grounds of appeal, 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 Lee In-bok

Justices Kim Young-young

Jeju High Court Justice Kim Hwang-sik