(영문) 부산지방법원 2013.11.1.선고 2013고합590 판결

Defendant A shall be punished by imprisonment with prison labor of one year and six months and by a fine of one hundred thousand,00,000,000 won, by imprisonment with prison labor of eight months, by Defendant B and C, and by a fine of ten thousand,00,000 won by Defendant D. If Defendant A fails to pay the above fine, the above Defendant shall be confined in a workhouse for the period calculated by converting KRW 50,000 into one day.

However, with respect to Defendant B and C, the execution of each of the above punishments shall be suspended for two years from the date this judgment becomes final and conclusive.

Seized articles listed in the attached list of seized articles shall be confiscated from Defendant C, respectively. An order shall be issued to each of the above fines in an amount equivalent to the above fines against Defendant A and C.

Reasons

Criminal facts

Defendant A is a person who engages in the business of purchasing medicine, etc. and manufacturing and selling food, etc. in his/her residence.

Defendant B is the representative director of D, a corporation established for the purpose of manufacturing and selling liquid extractions (hereinafter referred to as “marry EXE”). Defendant C is the representative of a general sales agency that distributes health food across the country. Defendant D is a corporation established for the purpose of manufacturing and selling, etc., “mar EXE”.

1. Defendant A and B (Violation of the Food Sanitation Act)

No person may sell foods manufactured, processed, or subdivided by any person other than a business operator. Around March 14, 2012, Defendant B entered into a sales contract with the said I’s representativeC and the said I’s distribution company specialized in medicines located in Dongdaemun-gu Seoul Metropolitan Government (L) at the D office located in the Seoul Northern-gu J, Seoul.

피고인 B는 2012. 3.경 위 사무실에서 식품제조·가공업 등록을 하지 아니하여 영업자가 아닌 피고인 A에게 '어성초 엑기스'를 사용한 'M'의 제조방법을 알려주고 '어성초 엑기스'를 제공해 주면서 'M'을 제조하여 (주)L 등에 납품하도록 하였다. 피고인 A는 2012. 3.경 시중에서 삼지구엽초, 육종용, 구기자, 인삼, 야관문, 도두콩, 키토산 등을 구입하고, 광주 북구 N빌라 103호에 있는 자신의 주거지에서 이를 말리고 조그만 절구통에 담아 찧어 분말로 만든 다음, 피고인 B로부터 위와 같이 제공받은 '어성초 엑기스'로 반죽하고, 이를 주거지 인근에 있는 제분소에서 지름 1cm의 환으로 만드는 방법으로 'M' 1,000정을 제조하여 (주)L에 납품하였다. 피고인 A는 이를 비롯하여 그 무렵부터 2012. 6. 하순경까지 위와 같은 방법으로 'M 20,000정을 제조하여 (주)L에 16,000정, C이 운영하는 I에 4,000정을 각각 판매하고 판매 대금으로 9,200만 원을 받았다.

As a result, the Defendants conspired to sell foods manufactured by a person other than a business operator.

2. Defendant A [Violation of the Act on Special Measures for the Control of Public Health Crimes (Manufacture of Illegal Foods)]

No person shall use a room or pen, which is a chemical synthetic compound, for which standards and specifications are not publicly announced, as food additives, and shall sell food containing such room or manufacture, import, process, use, cook, store, subdivide, transport or display for sale any food for the purpose of sale.

Nevertheless, around March 2012, the Defendant manufactured 'M' 1,000 as described in paragraph (1) at the Defendant's residence, and manufactured 'M', which is a chemical synthetic compound in which the standards and specifications have not been publicly notified in the manufacturing process, with addition, which is a chemical synthetic compound in which the standards and specifications have not been publicly notified. At that time, the Defendant sold it to L.

From around that time to June 2012, the Defendant manufactured “M” 20,000 by the said method and sold 16,000 hours to the (ju) L and 4,000 hours to the I operated by C, respectively, and received KRW 92,00,00 as the price.

As a result, the Defendant used a part of the body, which is a component of the pre-incrimination treatment in which standards and specifications are not publicly announced, as food additives, and manufactured and sold food containing a part of the body for the purpose of sale.

3. Defendant C.

A. Violation of the Food Sanitation Act

When it is intended to sell foods, he/she shall sell foods or food additives after indicating the name of products, types of foods, names of business places and locations, date of manufacture, distribution period, details, names of raw materials, ingredients, contents, etc. in accordance with the standards and specifications for foods or food additives, tools and containers used for business, and packaging thereof.

Nevertheless, after being supplied with 'M' 4,00 on June 14, 2012 by A as stated in Paragraph 1, the Defendant sold 500 m 1,750,000 won to 'P', which is an enterprise located in Busanjin-gu around February 14, 2013, without indicating the date of manufacture, distribution period, content quantity, raw material name, ingredients name and content.

In addition, from around that time to June 5, 2013, the Defendant sold KRW 1,610 (6,234,000) over 11 times as shown in the list of crimes in the attached Table.

나. 약사법위반 약국개설자가 아니면 의약품을 판매하거나 판매할 목적으로 취득할 수 없음에도 불구하고, 피고인은 2012. 11. 중순경 성명불상의 자로부터 판매할 목적으로 전문의약품인 비아그라 90정, 시알리스 90정, 국소마취제 5개를 취득하여, 이를 불특정 다수인에게 비아그라 1정당 5,000원, 시알리스 1정당 5,000원, 국소마취제 1개당 10,000원에 판매하고, 2013. 6. 18.경까지 서울 광진구 Q 지층 | 사업장에 비아그라 75정, 시알리스 37정, 국소마취제 3개를 보관하였다.

4. Defendant D

The defendant, who is the representative director, committed a violation as described in paragraph (1) in relation to the defendant's business.

Summary of Evidence

1. The respective legal statements of the defendant A and C and some of the legal statements of the defendant B and D

1. Each prosecutor's protocol of examination of the defendant A and B

1. Police suspect interrogation protocol regarding Defendant C

1. Each police statement of R and S;

1. Each protocol of seizure;

1. The table for the request for appraisal (M 8, diameter 1cm, 280 pages of evidence records);

1. The application of a business registration certificate (I), content certification (Evidence No. 125 of the evidence record), each total sales contract (Evidence No. 177-180 of the evidence record), each receipt (Evidence No. 182, No. 264 of the evidence record), the details of entry and withdrawal (Evidence No. 263 of the evidence record), the application of statutes on the total sales contract (Evidence No. 573 of the evidence record) as of March 14, 2012 and August 2, 2012

1. Article applicable to criminal facts;

○ Defendant A: Article 94 subparag. 1 and Article 4 subparag. 7 of the Food Sanitation Act; Article 30 of the Criminal Act (as a whole, the sales of foods by unregistered operators); Article 2(1)2 and Article 2(2) of the Act on Special Measures for the Control of Public Health Crimes; Article 6 subparag. 1 and 2 of the Food Sanitation Act (as a whole, the use of food additives on hand, the manufacture of food for the purpose of selling and selling foods containing on hand, and the requisite imposition of fines)

○ Defendant B: Article 94 subparag. 1 and Article 4 subparag. 7 of the Food Sanitation Act, Article 30 (Overall Control) of the Criminal Act: Article 97 subparag. 1, Article 10(2), and Article 10(1) of the Food Sanitation Act (limited to the sale of unregistered foods), Article 93(1)7, and the main sentence of Article 44(1) of the Pharmaceutical Affairs Act (limited to the acquisition and sale of drugs for the purpose of sale, and the possession of drugs)

○ Defendant D Co., Ltd.: the main sentence of Article 100, Article 94 subparag. 1, and Article 4 subparag. 7 of the Food Sanitation Act

Articles 40 and 50 of the Criminal Act [Punishments under the Act on Special Measures for the Control of Public Health Crimes (Manufacture of Illegal Foods)]

1. Selection of punishment;

In regard to the crimes of violation of the Act on Special Measures for the Control of Public Health Crimes, each choice of imprisonment for a limited term, each violation of the Food Sanitation Act, and each violation of the Pharmaceutical Affairs Act.

1. Aggravation for concurrent crimes;

The former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (an aggravated punishment for concurrent crimes by a person who commits a violation of Pharmaceutical Affairs Act with heavier punishment)

1. Discretionary mitigation;

Articles 53 and 55(1)3 and 55(1)6 of the Criminal Act (see, e.g., circumstances favorable to the defendant A and the subsequent);

Articles 70 and 69(2)(Defendant A) of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act (General Considerations in favor of Defendant B, C, and Subsequent)

1. Confiscation;

Article 48(1)1 (Defendant C) of each Criminal Code

1. Order of provisional payment;

Judgment on the assertion by Defendant B, Defendant D, and defense counsel under Article 334(1) of the Criminal Procedure Act

1. Summary of the assertion

In the first place, Defendant B, the representative director of Defendant D Co., Ltd. (hereinafter referred to as Defendant Co., Ltd.), did not allow Defendant B to manufacture and sell “M”.

Preliminaryly, the Defendant Company reported food manufacturing and processing business in accordance with the Food Sanitation Act and the Enforcement Decree of the same Act, and A manufactured and sold “M” as an employee of the Defendant Company who is a director of the Defendant Company. Thus, it does not constitute the case of selling food manufactured by the unregistered business entity.

2. Determination

The summary of the facts charged against the Defendants is that: (a) Defendant B, the representative director of Defendant B, who is the representative director of Defendant Company for the sale of food manufactured by Defendant B, who does not fall under a business operator under Article 2 subparag. 10 of the Food Sanitation Act, was involved in the act of selling “M” manufactured by Defendant B without business registration pursuant to Article 37(5) of the same Act; and (b) whether Defendant B, who is an employee of the Defendant Company, who reported food manufacturing and processing business, was involved in the act of selling “M” manufactured by Defendant B (the primary assertion).

(a) Facts of recognition;

According to the above evidence, the following facts are acknowledged.

1) On March 14, 2012, the Defendant Company entered into a total sales contract for M with L and C. The main content of the said total sales contract is that the Defendant Company will supply (ju) L and C with KRW 20,000 per unit to KRW 5,500 per unit.

2) 한편 A는 그 전날인 2012. 3. 13, (주)L로부터 5,500만 원권 자기앞수표를 교부받았고, 피고인 B는 A로부터 위 자기앞수표를 교부받아 이를 환전하여 A에게 그 중 4,000만 원을 다시 건넸다.

3) On July 16, 2012, C registered its business with the trade name, and on August 2, 2012, Defendant B entered into a total sales contract with the same content as the total sales contract on March 14, 2012, except that the quantity and unit price column were in blank with Defendant B.

4) On August 21, 2012, Defendant B sent to C a content-certified mail stating that “on the Internet immediately deleted Korean M Advertisement” was posted, and C paid KRW 9 million to Defendant B on August 23, 2012.

B. Whether Defendant B participated in the manufacture and sale of M

In full view of the following circumstances recognized by the aforementioned facts and evidence, Defendant B entered into a total sales contract with (State)L and C through A, and the supply of EXE to A, and ordered A to manufacture and sell M at least 3) A to manufacture and supply M, or Defendant B participated in the manufacture and sale of AM in collusion with A. Thus, the above assertion by the Defendants and the defense counsel is without merit.

① On March 14, 2012, S, the actual operator of L, drafted a total sales contract for M with the Defendant Company and (State) L. On April 2012, 201, S, who was an employee, dispatched his employee to the Defendant Company Office in Gwangju to obtain the completed contract, and Defendant B stated that the dispatched employee had been visiting the Defendant Company’s factory in the Hamn-gun in the Hamn-gun.

② around March 2012, C introduced M and entered into a total sales contract between L and the Defendant Company, and Defendant B introduced and introduced Defendant B as a director of the Defendant Company, and Defendant B visited Defendant B, Defendant B entered into A at any time and anywhere Defendant B entered into the contract.

③ Defendant B, while recognizing the fact of preparing the above facts, only prepared a contract as required by the other party, and the Defendant Company entered into a separate oral agreement with the content that the contract would create M when the contract deposit of KRW 300 million was paid, Defendant B again delivered KRW 40 million out of the amount received as stated in paragraph (2) of the above facts, and Defendant B ordered A to keep the total sales contract amount of KRW 50 million and keep the other party’s remainder of money and keep the other party’s remainder of money (Evidence 617 of the record of evidence). However, Defendant B, for a period of up to 30 million, did not have any special circumstance to make a oral agreement with the content that is completely different from the contract written by the other party, and even if the above oral agreement was concluded, it is difficult to obtain and keep the above amount of KRW 40 million out of the total sales contract amount of KRW 300 million.

④ Defendant B stated that Defendant B, at least once during the interrogation of the suspect, A had an X-ray 1-2 disease at least once in a month from 1 to 2 month, and that at least the supply of her x-ray to A was recognized.

⑤ If Defendant B is entirely unrelated to the manufacture and sale of M, it is difficult to explain the reasons why Defendant B entered into each total sales contract under the name of the Defendant Company on March 14, 2012 and August 2, 2012, and received KRW 15 million, and nine million each, while entering into each sales contract under the name of the Defendant Company.

B. Whether A is an employee of the defendant company

According to the police interrogation protocol of the defendant company and the police statement of the defendant company, Gap used the defendant company's office as a director of the defendant company, and Eul and the defendant company knew that Gap was a director of the defendant company, but there is no evidence to acknowledge that Gap received certain benefits from the defendant company, or registered or reported as an employee of the defendant company. Rather, according to the above facts and circumstances, Gap's own procurement of some materials at its own house, which is a place separate from the defendant company's manufacturing factory, and manufactured and sold M, and obtained sales profits on its own account, rather than receiving profits from the defendant company's business. Thus, since Eul cannot be deemed to have manufactured and sold M as employee of the defendant company, the defendants and the defense counsel's above assertion is without merit.

Reasons for sentencing

1. Defendant A

[Scope of applicable sentences] One year and six months from June to 15 years of imprisonment, and fine of 92 million to 230 million won (decision of sentence] The crime of this case by one year and six years of imprisonment, and fine of 100 million won is to be committed by the defendant without registering the manufacture and processing business of food, and where the defendant unclaimed without a doctor's prescription, he/she manufactures and sells food by adding a room or pen, which has a risk of causing serious effects on health or threatening life, and having a risk of causing threat to life, as he/she manufactures and sells the food by adding it (20,00 won). Considering the fact that the defendant takes the lead in the process of manufacturing and selling the food of this case, a strict punishment equivalent thereto is required.

However, the amount of profits acquired through the instant crime is deemed to be relatively small compared to the amount of sales, considerable parts of the food manufactured in parallel are not distributed during the time, there is no record of criminal punishment exceeding fines, there is no record of criminal punishment exceeding the same kind of crime, and there is no record of criminal punishment, and there is no record of criminal punishment later, and the confession of the crime at the latest in this court, and it is against the law. In addition, taking into account the Defendant’s age, character and conduct, and family relationship, the punishment as ordered shall be determined by the order

2. Defendant B

[Scope of Punishment] Imprisonment with labor for not more than seven years

[Determination of Sentence] 8 months of imprisonment, 2 years of suspended execution

Considering the fact that the defendant, even though he/she had been sentenced to two times of a fine due to a crime of violating the Food Sanitation Act, is going to commit the crime of this case, and that he/she does not oppose the denial of the crime, it is necessary to strictly punish the defendant accordingly.

However, the degree of the defendant's participation in the crime of manufacturing and selling the food of this case seems to be relatively smaller than that of accomplices, and there is no record of criminal punishment exceeding the fine except for the crime of violation of the Forestry Products Control Act of 1970, and the fact that the defendant's health status is not good due to the age of 80 years old, etc. In addition, the punishment is determined as ordered in consideration of various sentencing conditions specified in the arguments of this case, such as the defendant's character, conduct and family relationship

3. Defendant C5)

[Scope of Punishment] Imprisonment with prison labor for not more than seven years and six months;

[Determination of Sentence] 8 months of imprisonment, 2 years of suspended execution

Considering that the Defendant’s act of selling medicines, such as vigra and calce, without a doctor’s prescription, is a dangerous act that may seriously affect the buyer’s health even though he/she had a history of criminal punishment on several occasions, including a two-time sentence, such as a fine imposed on the Defendant for a violation of the Pharmaceutical Affairs Act, two times of a suspended sentence, and two times of a suspended sentence, it is necessary to punish the equivalent act.

However, in light of the sales amount of the crime of violating the Food Sanitation Act and the drug value acquired and sold by the crime of violating the Pharmaceutical Affairs Act, favorable circumstances such as the confession of the crime, and other factors, such as the defendant's age, character and conduct, family relationship, etc., the punishment as ordered shall be determined in consideration of various sentencing conditions shown in the argument of the case.

4. Defendant D

[Scope of Punishment] Fines not exceeding 100 million won

[Decision of Sentence] The degree of participation in the crime by Defendant B, the representative director of the original Defendant Company, and the profits from acquisition, etc. shall be considered.

Judges

Chief Judge Park Jong-chul

Judge Lee Young-young

Judges Cho Jong-sung

Note tin

1) On the other hand, the total sales contract (Evidence No. 573, 574 pages) submitted by Defendant B submitted by Defendant B is a blank space. On the other hand, the total sales contract submitted by C (Evidence)

In the records 179, 180 pages), the unit price is stated as 4,500 won, but only C’s seal is affixed on the unit price stated in the sign, and the unit price is affixed thereon.

It is difficult to see that a contract has been concluded for a portion.

2) Defendant B was drafted on August 2, 201, and the contract was terminated, and the date of the preparation of the contract was between 2012, 3, 14 and 2012, 3, and 14.

Although "2012." argues that "2012." is a clerical error in the "2011.", the term of termination of the contract, which is written in the "the total sales contract submitted by the defendant B, is a true article.

In light of the above facts acknowledged by objective documentary evidence, it is difficult to believe it as it is, and rather, in light of the above facts acknowledged by objective documentary evidence,

The above-mentioned General Sales Contract seems to have been concluded around August 2012.

3) The Defendants and the defense counsel asserted that M would be made by using the language portraits and could not be made by using the language portraits, but the Defendants and the defense counsel argued that M would not be made by using the language portraits;

A, in fact, directly manufacturing M in question in this case, a drug consisting of EXE, EXE, EXE, frymopa, etc.

M manufactured by A in such a manner as to killing early powder, etc., and M manufactured by A shall be subject to reporting by the Defendant Company on August 2008.

Since there is a difference in the manufacturing process with another product, the above argument by the Defendants and the defense counsel is without merit.

4) The amount of KRW 15 million received after the conclusion of the contract as of March 14, 2012 and KRW 9 million received after the conclusion of the contract as of August 2, 2012 shall be at least implied.

I seem to be in consideration.

5) A crime of violating the Food Sanitation Act against the Defendant is subject to sentencing guidelines, but this is a food health crime, false labelling, or small and medium-sized type (50 million won).

less than 1) The reduction area (type 1): the reduction factor among persons who are specially charged: the case where the person is not a false country of origin or a fraudulent act against livestock

The range of punishment is not more than eight months of imprisonment, and there is a violation of the Pharmaceutical Affairs Act in which the sentencing criteria are not set, and only the lower limit of the recommended punishment shall be considered.

As a result, the scope of recommendation according to the standards for handling multiple crimes is at least one month of imprisonment.