Whether an act of manufacturing or selling unreported cosmetics may be punished aggravatingly by applying Article 3(1)2 of the former Act on Special Measures for the Control of Public Health Crimes (negative)

Article 3 (1) 2 of the former Act on Special Measures for the Control of Public Health Crimes (amended by Act No. 8365 of Apr. 11, 2007) cited Article 26 (1) of the former Pharmaceutical Affairs Act (amended by Act No. 6025 of Sep. 7, 199) at the time of enforcement of the former Cosmetics Act (amended by Act No. 6025 of Sep. 7, 199). However, Articles 26 (1) and 55 of the former Pharmaceutical Affairs Act (amended by Act No. 1025 of Sep. 1, 200) puts the scope of the former Act on Special Measures for the Control of Public Health Crimes (amended by Act No. 8365 of Apr. 11, 200) separately from the former Act on Special Measures for the Control of Public Health Crimes (amended by Act No. 1025 of Sep. 1, 2009).

Article 3(1) of the former Cosmetics Act (amended by Act No. 6153 of Jan. 12, 200), Article 6 of the Addenda (amended by Act No. 6153 of Sep. 7, 199), Article 3(1)2 of the former Act on Special Measures for the Control of Public Health Crimes (amended by Act No. 8365 of Apr. 11, 2007), Article 26(1) of the former Pharmaceutical Affairs Act (amended by Act No. 6025 of Sep. 7, 199) (see current Article 31(1))

Defendant 1 and one other

Defendants

Law Firm Mao, Attorney Lee Gyeong-chul

Seoul High Court Decision 2006No2575 decided June 21, 2007

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. At least two co-offenders who are jointly engaged in a crime do not legally require a certain type of punishment, but only two or more persons commit a combination of intent to jointly process a crime and realize the crime. Even if there was no process of conspiracy, if a combination of intent is formed in order or impliedly through several persons, the conspiracy relationship is established, and even if they did not directly participate in the act of conspiracy, they are held liable for the other co-principal's act (see, e.g., Supreme Court Decision 2005Do8507, Jan. 26, 2006).

Examining the reasoning of the judgment below in light of these legal principles and records, the court below is justified in finding the liability of an accomplice on the ground that the defendants knew to manufacture and sell cosmetics and they manufactured and sold cosmetics according to their role sharing, and there is no error in the misapprehension of legal principles as to the establishment of joint principal offenders, as otherwise alleged in the ground of appeal. The ground of appeal on this point is rejected.

2. The interpretation of penal provisions shall be strict, and the interpretation of penal provisions in the direction unfavorable to the defendant is not permitted because it is against the principle of no punishment without the law to excessively expand or analogically interpret the meaning of penal provisions to the disadvantage of the defendant (see Supreme Court Decision 2006Do265, Jun. 2, 2006, etc.

Article 3 (1) 2 of the former Act on Special Measures for the Control of Public Health Crimes (amended by Act No. 8365 of Apr. 11, 2007; hereinafter referred to as the "former Public Health Crimes Control Act") provides that "any person who manufactures medicines or cosmetics without permission under Article 26 (1) of the Pharmaceutical Affairs Act or sells or acquires them for the purpose of sale shall be punished by imprisonment for life or for not less than three years if the value of such cosmetics is not less than 10,000 won per annum, and Article 26 (2) of the former Pharmaceutical Affairs Act provides that "No person who intends to manufacture medicines or cosmetics for the purpose of sale shall obtain permission from the Commissioner of the Korea Food and Drug Administration," Article 26 (1) 2 of the former Pharmaceutical Affairs Act (amended by Act No. 6025 of Sep. 7, 199; hereinafter referred to as the "former Public Health Crimes Control Act"), and Article 56 (1) of the former Pharmaceutical Affairs Act provides that no person shall be punished by Act No. 9. 26. 9.

In full view of the above provisions, Articles 26(1) and 55 of the former Pharmaceutical Affairs Act, cited in the former Public Health Crimes Control Act at the time of the enforcement of the former Cosmetics Act, which had the same permission as that of the manufacture and sale of medicines for the previous manufacture and sale of the cosmetics, prohibit the manufacture and sale of the cosmetics without permission, but excludes the manufacturing business of the cosmetics in accordance with the enactment of the former Cosmetics Act from the permission. However, Articles 3(1) and 14(1) of the former Cosmetics Act provide that the reporting of the manufacture and sale of the cosmetics shall be prohibited under Article 26(1) of the former Pharmaceutical Affairs Act and Article 3(1) of the former Cosmetics Act, which are similar in that it prohibits the manufacture and sale of the cosmetics, and thus, Article 3(1) of the former Cosmetics Control Act provides that the scope of the act of manufacturing and sale of the cosmetics without permission is different from Article 26(1) of the former Pharmaceutical Affairs Act, and Article 3(1) of the former Cosmetics Control Act provides that the former Act shall be subject to punishment under Article 13(1) of the former Cosmetics Act.

Nevertheless, the court below determined that Article 3 (1) of the former Cosmetics Act applies to the act of manufacturing cosmetics or selling cosmetics manufactured without filing a report under the former Cosmetics Act on the ground that Article 6 of the Addenda to the same Act is "the provisions corresponding to this Act (cosmetic-related provisions under the Pharmaceutical Affairs Act)". Thus, the court below erred by misapprehending the legal principles on the interpretation and application of Article 6 of the Addenda to the former Cosmetics Act, which affected the conclusion of the judgment.

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 Ahn Dai-hee (Presiding Justice)