Defendant

Defendant

Yellow Domincs (prosecutions) and stuffs (public trial)

Attorney Park Yoon-young

Changwon District Court Decision 2013Gohap20 decided August 29, 2013

The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

A. misunderstanding of facts or misunderstanding of legal principles

On February 16, 2011, when filing an application for registration of fishery product processing business under the Quality Control of Fishery Products Act, the Defendant clarified that the Defendant’s business attitude in the “business plan” was the business of taking, washing, cutting, and processing the Defendant’s factory wrong, and that the public official in charge of the Sacheon City having jurisdiction over which the Defendant had inspected the Defendant’s factory at the time was also aware of such situation directly, the Defendant should have returned the application for registration itself without being registered as the “fishery product processing operation operation” corresponding thereto. However, at that time, the Defendant controlled the Defendant on the ground that it was improper for the Defendant to institute a prosecution for the crime of this case as a result of the crime of this case on the ground that the Defendant was registered as the “fishery product processing operation operation operation without the end of the time,” and that the Defendant did not have any awareness of illegality in light of such circumstances, the lower court erred by misapprehending the facts found guilty of the facts charged of this case or by misapprehending the relevant legal principles under the Food Sanitation Act, which affected the conclusion of the judgment.

B. Unreasonable sentencing

The punishment sentenced by the court below (one year and six months of imprisonment, two years of suspension of execution of imprisonment, and one billion won of fine) is too unreasonable.

2. Determination

A. Judgment on misconception of facts or misapprehension of legal principles

1) The Defendant also asserted the same purport as this part of the grounds for appeal, and the lower court determined that the fishery product processing business operated by the Defendant was conducted in a state where it did not report its business due to its violation of the Food Sanitation Act and the evidence duly adopted and investigated by the relevant statutes and the lower court, and found the Defendant guilty of the facts charged. Examining the lower court’s judgment in a thorough comparison with the evidence, evidence law, and legal principles, the aforementioned determination is justifiable.

2) Furthermore, in light of the following circumstances acknowledged by the lower court and the evidence duly admitted by the lower court, the Defendant’s assertion that the Defendant was liable for failing to report the business under the Food Sanitation Act and subordinate statutes, or that there was no perception of illegality regarding the instant crime cannot be accepted.

① Ordinary, a business operator is in accord with the general public’s common sense to operate a business in compliance with the reported and registered contents after completing the report and registration in accordance with the administrative laws and regulations. According to the empirical rule, a person who runs a business listed in the Food Sanitation Act may recognize the difference between the concept of “processing dynamics” and “original dynamics”. However, on February 16, 2011, the Defendant had already been engaged in the business of processing fishery products even before he/she applied for registration of fishery products in accordance with the Quality Control of Fishery Products Act at the time when he/she had been operating the business of processing fishery products of this case (it is possible for the Defendant to file a business report in accordance with the Food Sanitation Act and the Food Sanitation Act on December 204) in a situation where he/she had already been operating the business of processing fishery products of this case at the time when he/she had completed the registration of the business of processing fishery products of this case in accordance with the above registration. Accordingly, it is difficult to accept the Defendant’s legal basis for recommending the Defendant to refuse to apply for registration of the above.

② The Defendant, while maintaining the previous processing dynamics of fishery products, withdrawn a business report under the Food Sanitation Act and the Food Sanitation Act and the Food Sanitation Act on March 9, 201. The main reason is that: (a) under the status of business report under the Food Sanitation Act and the Food Sanitation Act, he/she was under the control of hygiene from the competent administrative agency at any time and installed and operated additional equipment in compliance with facility investment standards; (b) thus, he/she was intended to avoid this (a) the protocol of examination by the prosecution against the Defendant; (c) the protocol of examination by the police protocol against the Defendant; and (d) the protocol of examination by the police protocol against the Defendant; and (e) the evidence record of each police protocol against the Defendant; and (e) the statement of business report under the Food Sanitation Act, until it is decided to withdraw the business report under the Food Sanitation Act and subordinate statutes, it appears that the Defendant was based on considerable expert knowledge on the relevant Acts and subordinate statutes that the business report may not be reported under the Food Sanitation Act. This does not accord with the assertion that the Defendant,

③ On February 6, 2012, Non-Indicted 2, who is the chief officer of the Health and Sanitation Division and the competent Minister, did not take any measures against the Defendant, even though the Defendant, and the Defendant did not take any measures against the 20 or more companies which completed the registration of fishery product processing business under the Quality Control of Fishery Products Act, in principle, when producing, distributing, and selling “processed food”, notified that a separate business report should be filed pursuant to the provisions of Article 37(4) of the Food Sanitation Act (Evidence 14 pages).

④ In addition, around June 2012, the Defendant was subject to the control from Nonindicted 3, a public official in charge of the investigation team, for the purpose of the Busan Regional Food and Drug Administration, on or after the end of the pertinent investigation team, to the effect that “after drilling Nonindicted 2, a public official in charge of the investigation team, who has maintained the same position as above ③, reports a business in accordance with food sanitation laws and regulations” was subject to the administrative guidance from Nonindicted 3, a public official in charge of the said investigation team, but there was no measure accordingly (Evidence No. 495 pages of the evidence record).

⑤ In 2005, the Defendant was sentenced to imprisonment with labor for not more than ten months and two years of suspended sentence for a crime of violating the Food Sanitation Act, which is the name of the crime, on the charge that “the head of the competent government office did not report the business under the Food Sanitation Act, and processed the wrong language from May 12, 2001 to November 5, 2004” and the Defendant was sentenced to a punishment for a violation of the Food Sanitation Act, which is the name of the crime. As seen above, the Defendant completed the business report pursuant to the Food Sanitation Act and the Food Sanitation Act around December 2004, under the judgment that it would be an economic benefit to avoid the regulation under the Food Sanitation Act and the Food Sanitation Act at the same time after the lapse of a considerable period of time, and the Defendant was tried to commit the instant crime

4) Therefore, the Defendant’s assertion of mistake or misapprehension of legal principles is without merit.

B. Determination on the assertion of unfair sentencing

As to the objective facts of the instant crime, the Defendant’s objective fact-finding is against his own will, and the Defendant was unable to obtain the registration of the fishery product processing partnership business from the beginning, or some of them were avoided the registration of the above processing partnership business (the Defendant completed the registration of the fishery product processing partnership business on November 201, 201), and the Defendant is found to have more favorable sentencing factors or objective and neutral sentencing factors, such as the fact that the Defendant is aged 70 years old and physically handicapped and the health condition of class 4 is not good.

However, the defendant denied the crime until the trial is in short of reflect color while denying the crime; the defendant's business operation period without reporting the business operation under the food sanitation laws and regulations is not short, and the crime liability is heavy; the defendant's office is directly connected to people's dietary life and the harmful elements are primarily managed (it is not more than 455 pages of evidence records). The defendant revoked his business report under the food sanitation laws and regulations on March 9, 201 in order to reduce the costs needed to comply with the sanitation standards under the food sanitation laws and regulations, thereby leading to the crime of this case; the defendant's office withdrawal of the business report under the food sanitation laws and regulations on March 9, 201. The defendant's office was found to have been found to have been more than the standard content of the stein and steinium harmful to human body. The result is presumed to have not been related to the crime of this case; the defendant has been sentenced to imprisonment for 10 years or more with prison labor even in 2005.

In full view of the aforementioned factors of sentencing and the Defendant’s age, character and conduct, intelligence and environment, motive and background leading to the instant crime, the means and consequence of the instant crime, various circumstances revealed in the pleadings, including the circumstances after the instant crime, and the statutory punishment for the violation of the Act on Special Measures for the Control of Public Health Crimes (Concurrent imposition of a fine equivalent to two to five times the retail price of the arms or imprisonment for not less than three years and the processed products), etc., the sentence imposed by the lower court is deemed reasonable (the amount of the fine, the period of imprisonment imposed concurrently, and the Defendant’s ability, etc.). In so doing, it cannot be deemed unreasonable to deem that the amount of the converted penalty is calculated as KRW 2 million per day, considering the amount of the fine, the period of imprisonment imposed concurrently, and the Defendant’s ability.

Therefore, the defendant's assertion of unfair sentencing is without merit.

3. Conclusion

Therefore, the defendant's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Yoon Jong-gu (Presiding Judge)