2013No163 Violation of the Act on Special Measures for the Control of Public Health Crimes (Unlawful)

(Manufacture of Articles) Violation of the Food Sanitation Act

Kim, Livestock Industry

Housing Jinju City

【Reference domicile Nar

Defendant

Fluorial rank, fluorial rank, or Glaver (Public trial)

The text of a legal entity;

[Defendant-Appellant]

Legal entities; and

[Defendant-Appellant] Defendant 1

Daejeon District Court Decision 2012Gohap451,495 decided March 15, 2013

September 4, 2013

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for two years.

Of the facts charged in the instant case, there is no point of violation of the Act on Special Measures for the Control of Public Health Crimes

1. Summary of grounds for appeal;

A. Legal principles

1) With regard to the fact of violation of the Act on Special Measures for the Control of Public Health Crimes (the manufacture of illegal medicines), melting is not a medicine, so it is not necessary to obtain permission from the Commissioner of the Korea Food and Drug Administration for manufacture and sale.

2) Regarding the violation of the Food Sanitation Act, the contents of the advertisement made by the defendant when he sells melting constitute permissible scope under the Food Sanitation Act, and cannot be said to be an advertisement that may lead to confusion with medicine.

B. Unreasonable sentencing

The sentencing of the lower court (limited to three years of imprisonment, fine of 40 million won, confiscation) is too unreasonable.

2. Judgment on misapprehension of legal principles

A. As to the violation of the Act on Special Measures for the Control of Public Health Crimes (Manufacture of Illegal Medicines)

1) Whether melting constitutes a drug under the Act on Special Measures for the Control of Public Health Crimes

In light of the legislative purpose and purport of the Pharmaceutical Affairs Act, and the legislative purpose and purport of Article 2 subparagraph 4 of the Pharmaceutical Affairs Act, the term "pharmaceuticals" under the Pharmaceutical Affairs Act includes both the use for the purpose of diagnosing, treating, alleviating, treating, or preventing human or animal diseases other than those listed in the Korean Pharmacopoeia, or the use for the purpose of exerting pharmacological effect upon the structure and function of human or animal. It is reasonable to view that the term "pharmaceuticals" falls under the term "pharmaceuticals" regardless of the efficacy in the pharmacological action, regardless of the existence or absence of efficacy (see, e.g., Supreme Court Decision 201Do1429, Jan. 15, 2004).

However, the following facts recognized by the evidence duly adopted and examined by the court below, i.e., ① melting products under the control and supervision of the Ministry of Food and Drug Safety, which are manufactured according to the standards listed in the Korean Pharmacopoeia. The sale by the defendant is merely 'melting products, not processed in accordance with the herb standards.' Under the Food and Drug Code as publicly notified by the Ministry of Food and Drug Safety, 'raw materials for food' are included in 'raw materials that can be used for food', and 'biological use' is not included in 'biological use' among items permitted as medicine by the Ministry of Food and Drug Safety (see reply to the Ministry of Food and Drug Safety'). 3. The defendant cannot be viewed as having the effect of preventing new kinds of medicine or animal diseases, such as giving new names to those manufactured by himself/herself while selling melting or using them (see, e.g., the defendant's awareness that it is difficult to see that he/she has the effect of medical treatment or efficacy of the new animal diseases.

2) Sub-decisions

Therefore, the judgment of the court below which found the defendant guilty that the green products of this case manufactured and sold were sold without permission of the Commissioner of the Korea Food and Drug Administration in this case where it is difficult to see the green products of this case as a medicine was erroneous in the misapprehension of legal principles, which affected the conclusion of the judgment. Therefore, this part

B. As to the violation of the Food Sanitation Act

The term "foods" under the Food Sanitation Act refers to all kinds of food except the food taken as "pharmaceuticals" (Article 2 subparagraph 1 of the Food Sanitation Act), and as seen earlier, as long as green products (the same shall apply to green products sold by the defendant) manufactured and sold by the defendant cannot be viewed as medicine, they constitute food under the Food Sanitation Act and are subject to the above Act.

그런데 ① 피고인은 유MM, 허KK, 장PP 등의 홍보이사들을 통해 위 농장 내 강의실 에서 "우리 농장에서 판매하는 녹용은 직접 기른 사슴에서 자른 녹용이다. 이 녹용은 관절, 기관지, 혈압, 당뇨 등 온 몸에 다 좋다. 이것만 달여 마시면 모든 병이 다 호전 된다. 생녹용 12냥과 유황오리 1마리, 달팽이 500g 등과 15가지 한약재들을 그대로 넣 고 달여서 집으로 보내준다."는 취지로 홍보하도록 하였고, 피고인도 직접 강의실에 들 어가 녹용이 치매나 중풍 등을 예방할 수 있는 효과가 있다고 다시 한 번 선전을 한 바 있다. ② 피해자 전△△도 "약 설명을 하는데 녹용 들어가고, 유황오리 1마리, 식용 소라 하나, 마늘, 한약재가 들어가고 … 나이가 드실수록 이런 약을 드셔야 좋다면서 손발 저리고 피 안 도는 것도 그 약을 먹으면 혈액순환이 잘 되고 무릎도 안 아프고 다리도 안 저리고 어지러움증도 없어지고 피부도 고와지고, 밥맛도 좋아지고 … 심근 경색, 고혈압, 당뇨니 뭐니 하여튼 안 좋은 것 없이 다 좋다고 하더라구요 … 아무튼 자기네가 지어주는 약을 먹으면 암에도 안 걸리고, 심장병에도 좋고, 고혈압, 무릎관절 … 아 그리고 당뇨병에도 좋다며 … "라고 진술하고 있다 .

As can be seen, the contents of the Defendant’s advertisement when selling the green products of this case (including the melting food) include the contents that include a special effect on the prevention or treatment of the disease in light of the expression that merely added or taken in the food within the inherent limit of efficacy, which indicates the effect of the above advertisement, such as heart color, high blood pressure, and urology beyond the expression showing the effect attached or taken in the food. This is reasonable to deem the advertisement to be an act in violation of Article 13(1)1 of the former Food Sanitation Act (amended by Act No. 10787, Jun. 7, 2011) that prohibits the display and advertisement of the effect of the disease (this advertisement is merely an advertisement of the efficacy recognized as food nutrition, and thus, it cannot be deemed that the above advertisement content has reached the level of food nutrition in light of the circumstances acknowledged by the evidence submitted.)

As to this, the lower court found the Defendant guilty of the act of making an indication or advertisement that could lead to confusion with drugs, but, “The lower court’s conclusion that the Defendant found the Defendant guilty of the selective charge to the effect that it made an exaggerated advertisement for the purpose of preventing and treating melting diseases,” is acceptable as it is with the trial, and it cannot be said that it erred by misapprehending the facts or by misapprehending the legal principles, thereby adversely affecting the conclusion of the judgment. Accordingly, this part of the Defendant’s assertion is not acceptable.

3. Conclusion

Thus, as seen above, the defendant's appeal is partly reasonable, pursuant to Article 364 (6) of the Criminal Procedure Act, and the judgment of the court below is reversed, and it is again decided as follows after pleading. [Inasmuch as the judgment of the court below rendered a single sentence on the violation of the Act on Special Measures for the Control of Public Health Crimes (the manufacture of illegal drugs) which should be judged not guilty, it is a concurrent crime with the money crime.

Criminal facts and summary of evidence

Of the facts constituting the crime in the judgment of the court below, ‘2.' Except for the violation of the Act on Special Measures for the Control of Public Health Crimes in Defendant Kim Jong-sik (manufacturing of Illegal Medicines)', the remaining columns are

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 347(1) and 30 of the Criminal Act; Article 2 of the Addenda to the Food Sanitation Act (amended by Act No. 10787, Jun. 7, 2011); Article 97 subparag. 1 and Article 13(1) of the former Food Sanitation Act (amended by Act No. 10787, Jun. 7, 201); Article 30 of the Criminal Act (as a whole, an exaggerated advertisement of food; a choice of imprisonment with prison labor); Article 30 of the Criminal Act (as a whole, an exaggerated advertisement of food);

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act

Reasons for sentencing

[Scope of Punishment] Imprisonment from June to June 22 and fine of 386,756,00 won to 966,890,000 won

[Basic Crime] Judgment

[Determination of Punishment] A systematic fraud which is not less than 50 million won, and less than 5 billion won

[Special Mitigation] Where considerable damage has been recovered;

[Special Persons] When committing a crime against an unspecified or large number of victims, or repeatedly committing a crime over a considerable period of time

[Determination, Scope of Recommendation] Basic Field, 4 years to 7 years of imprisonment

【Standards for Concurrent Crimes】

- Two years of imprisonment (=three years x 1/2) to seven years;

【Concurrent Crimes】 Violation of the Food Sanitation Act

[Determination of Types] General Types of Food and Health

[Special Person] The Act on the Acceptance of Crimes is organized, planned, or specialized

[Determination of the recommended territory, Scope of Recommendation] Aggravation, Imprisonment from June to June, 3 years and six months

[Standards for Dealing with Multiple Crimes]

- The result of the aggravation of multiple crimes (the first crime maximum + the second crime maximum 1/2): Imprisonment for two years to eight years;

【Determination of Sentence】

In light of the fact that the Defendant instructed other accomplices under his own initiative to commit fraud by using deceptive act on the quality and capacity of melting used while manufacturing and selling green products in a systematic and planned manner, the Defendant committed fraud. In addition, it is inevitable to sentence sentence for a considerable period of time in light of the following: (a) the victims are many unspecified persons, whose total amount of damage exceeds KRW 730 million; and (b) the victims attempted to destroy evidence, etc., and there are no circumstances after the crime, such as attempted to destroy evidence.

However, the defendant made efforts to recover damage, such as the repayment of damage to a considerable number of victims, and the defendant did not have any criminal record heavier than the fine, the defendant repents and reflects the defendant's mistake, and the defendant's age, character and conduct, occupation, motive, means and consequence of the crime, and all of the sentencing conditions specified in the arguments of this case, such as the circumstances after the crime, shall be determined as the order.

Parts of innocence

Of the facts charged in the instant case, the fact of violation of the Act on Special Measures for the Control of Public Health Crimes (the manufacture of illegal medicines) is as stated in Paragraph (2) of Article 201 of the Criminal Act.

However, as seen earlier, in the event that this part of the facts charged does not constitute a crime, the judgment of innocence is rendered in accordance with the former part of Article 325 of the Criminal Procedure Act due to the relevant

The principal offender (Presiding Judge)

Freeboard

Freeboard Kim Dong-dong

1) Article 13 of the former Food Sanitation Act (amended by Act No. 10787, Jun. 7, 2011);

(1) No person shall make a false label or exaggerated advertisement with regard to the name of food, etc., manufacturing method, quality and nutrition labelling, and food traceability labelling.

No exaggerated packaging shall be made for packages, and labels or food additives that may cause confusion with medicine shall be placed on foods or food additives.

No advertisement shall be made. The same shall apply to the nutritions of foods or food additives for ingredients as raw materials.

(2) The scope of false labelling, exaggerated advertisements and exaggerated packaging under paragraph (1) and other necessary matters shall be prescribed by Ordinance of the Ministry of Health and Welfare.

January 18, 2010

Article 8 of the former Enforcement Rule of the Food Sanitation Act (Amended by Act No. 131, Jun. 29, 2012);

(1) The scope of false labelling and exaggerated advertisements under Article 13 of the Act shall be limited to containers, packages, radio, television newspapers, magazines, music, videos, printed materials, signboards, and the Internet.

In any other manner, the name, manufacturing method, quality nutrition of food, etc. shall indicate or inform information on raw materials, ingredients, or use.

Any of the following means:

2. Labeling or advertising that the person has efficacy in treating the disease;

Attached Table 3.Indications and the scope of advertisements which are not considered as false labelling or exaggerated advertisements (related to Article 8(2)4) of the above Enforcement Rule

1. Diversion;

(a)the following expressions or similar expressions primarily for the purpose of promoting general physical organization and function:

(i)an expression that helps maintain the sound growth and development of the human body and its sound activities;

(ii)an expression that helps maintain health, promote health, maintain physical strength, improve physical constitution, disseminate nutrition, etc.;

3) Simplely recommended expressions that do not refer to a specific disease: Provided, That the term referring to a specific disease, such as urine, urine, and cancer, or the term her disease;

No expression, such as the content that the treatment has efficacy or effect, or that it has effect on the characteristic signs or symptoms of a disease, shall be expressed.

shall not be eligible.

2) If the sum of the amount of profit of a single concurrent offender is found to be more than the most severe one crime as a result of the sum of the amount of profit of the same concurrent offender, the person shall be sentenced.

Reduction of 1/2 of the above lowest limit