Defendant 1 and one other

Defendants and Prosecutor

Yielded lines

Law Firm Barun, Attorneys Cho Ho-ho et al.

Seoul Central District Court Decision 2008Dahap411, 525 (Consolidated) Decided October 10, 2008

Of the judgment of the court below, the guilty portion against Defendant 1 shall be reversed.

Defendant 1 shall be punished by imprisonment for two years and by a fine of 180,000,000 won.

When Defendant 1 fails to pay the above fine, the above Defendant shall be confined in a workhouse for the period calculated by converting KRW 1,000,000 into one day.

However, with respect to Defendant 1, the execution of the above imprisonment shall be suspended for three years from the date this judgment becomes final and conclusive.

The prosecutor's appeal against the non-guilty part of the defendant 1, the appeal by the defendant 2 and the prosecutor's appeal against the defendant 2 are all dismissed.

1. Summary of grounds for appeal;

(a) Defense counsel;

(1) misunderstanding of facts or misapprehension of legal principles

(A) The facts charged against Defendant 1 on the violation of the former Pharmaceutical Affairs Act and the facts charged in violation of the Act on Special Measures for the Control of Public Health Crimes (hereinafter “Violation of the Public Health Crimes Control Act”) are identical to the basic facts, and thus res judicata of the above summary order extends to this part of the facts charged. However, the lower court did not render a judgment of acquittal against Defendant 1, and even though the instant “new-term vision” constitutes a functional cosmetics or quasi-drugs, not a medicine, the lower court found Defendant 1 guilty of this part of the facts charged.

(B) In addition, 100 million won out of 300 million won in which Nonindicted 1 invested to Defendant 1 was able to be used for the payment of various expenses, such as unpaid taxes, debts, and public charges, which were incurred before or after the instant investment agreement, and Defendant 1 did not intend to obtain illegal profits, the lower court found Defendant 1 guilty of the charges of occupational embezzlement against Defendant 1 on the premise that the said 100 million won should be used for the company.

(2) Unreasonable sentencing

Even if the facts charged of this case are found guilty, the court below's punishment is too excessive to Defendant 1, in light of the following: (a) most of the non-Nus distributed in the market were rarely regulated as a violation of the Health Crimes Control Act; (b) Non-Indicted 1 did not want the punishment of the Defendants; and (c) the fine of KRW 500 million sentenced to the Defendants, who are the married couple, is the same as the final sentence of KRW 1 billion in substance; and (b) the sentence of KRW 4 years in the suspension of execution and fine of KRW 500 million in the imprisonment of two years and six months in the imprisonment of one year and six months; and (c) the sentence of KRW

(b) Prosecutors;

(1) misunderstanding of facts

Non-Indicted 1 made an investment after hearing the statement to the effect that “Non-Indicted 1 will leave the interest of 10 times” from the Defendants, and made a registration as the representative director of the ○○○○○ Center upon the request of pro-Japanese, and in fact, it was not operated by the ○○○○ Center, but did not enter in the investment agreement the Defendants believe that they made an oral agreement and did not enter the distribution of profits in the investment agreement, and made an investment without knowing the financial standing of the Defendants and the progress status of the instant non-indicted 1’s business. Nevertheless, in light of the respective statements made by Non-Indicted 2, 3, and 4, the lower court erred in rejecting the statements made by Non-Indicted 1, which are reliable, and found not guilty of the facts charged against the Defendants.

(2) Unreasonable sentencing

In light of the fact that the nature of the crime of this case is not good, the lower court’s punishment against the Defendants is too minor.

2. Determination:

A. As to the assertion of mistake or misapprehension of legal principle by defense counsel

(1) The Defendants’ violation of the Health Crimes Control Act

(A) The part of the facts charged against Defendant 1 until July 25, 2007

The issue of whether the facts charged or facts constituting an offense ought to be determined based on the facts that are identical to the Defendant’s act and their social functions, and such normative elements should also be considered (see Supreme Court Decision 2002Do2642, Jul. 11, 2003). According to the records, Defendant 1 was issued with a summary order on July 25, 2007 and the above summary order was confirmed on September 1, 207. The facts constituting the crime of the above summary order are “the Defendant,” which is a new representative director of the non-freshion chain company, and thus, is likely to mislead the Defendant to believe that there is medical efficacy and effect on the containers, packages, or appended notes of the above facts, and thus, it cannot be said that there is a high-speed high-speed high-speed medical prescription of the instant case on the Internet homepage of Gangnam-gu.

(B) As to Defendant 1’s remaining charges and Defendant 2

In light of the legislative purpose and purport of the Pharmaceutical Affairs Act, and the contents and purport of Article 2 subparagraph 4 of the Pharmaceutical Affairs Act that define drugs, the concept of drugs under the Pharmaceutical Affairs Act includes both those used for the purpose of diagnosing, treating, alleviating, alleviating, treating or preventing diseases of human beings or animals, or those used for the purpose of exerting pharmacological influence on the structure and function of human beings or animals, other than those listed in the Korean Pharmacopoeia. Whether drugs constitute drugs must be interpreted as subject to regulation under the Pharmaceutical Affairs Act, regardless of the existence of any efficacy in the pharmacological action, by comprehensively assessing the purpose of use, efficacy, effect, efficacy, efficacy, volume, publicity or explanation in the sale of drugs, etc., other than those recognized as being used for the above purpose and claimed as having efficacy or efficacy (see, e.g., Supreme Court Decision 2006Do3468, Jun. 28, 2007).

According to the evidence duly examined and adopted by the court below, the defendants sold the "new-term rain" manufactured at the New-term Non-Co., Ltd. by means of Internet sale and door-to-door sales, and through the Internet homepage of the above company and door-to-door sales committee, the defendants advertised that "new-term rain" has the efficacy such as relaxation of Atopy, domination, domination, stoves, stoves, stoves, and stoves effects, prevention of stoves, and reduction of weight, etc., and when promoting the above so, the above vision was indicated as "sib control", and it is not recognized as effective in the medical treatment and treatment of drugs of this case, or it is not recognized as effective in the treatment and treatment of drugs of this case after obtaining permission from the above company's Internet homepage and door-to-door sales committee, and it is also recognized as effective in the treatment and treatment process of drugs of this case, and it is not recognized as effective in the treatment and treatment period.

Therefore, the judgment of the court below which found the defendant guilty of this part of the facts charged cannot be deemed to have errors as alleged in the grounds of appeal.

(2) The part on Defendant 1’s occupational embezzlement

According to the investment agreement drawn up between Defendant 1 and Nonindicted 1 (hereinafter “instant investment agreement”), Article 2(2) of the instant investment agreement provides that “Defendant 1 shall use 200 million won out of the total amount of 300 million won invested by Nonindicted 1 for the establishment and operation of the corporation subject to the contract and shall not use it for any other purpose. 10 million won shall be used for Defendant 1’s payment of money without payment of taxes, debts, public charges, and other expenses.” In light of all the circumstances up until the lower court’s lawful investigation and adopted evidence, including the contents of the agreement and the above money as an investment fund for joint business, it is reasonable that 20 million won out of the investment funds contributed by Nonindicted 1 and Nonindicted 1 were to be established as the establishment cost of the corporation, 10 million won for the future operation of the corporation, 20 million won cannot be used for the purpose of smooth operation of the said investment agreement, and even if Defendant 1 used the money for personal collection and payment of money without payment of public charges and other expenses incurred before its preparation.

(3) Conclusion

As seen above, the lower court found Defendant 1 guilty of all the charges of violation of the Public Health Crimes Control Act against Defendant 1 and sentenced Defendant 1 to a single punishment on the grounds that the remaining crimes of occupational embezzlement and concurrent crimes under the former part of Article 37 of the Criminal Act are related to Defendant 1. As such, without examining the allegation of unfair sentencing, the part of conviction against Defendant 1 among the lower judgment cannot be reversed.

B. As to the prosecutor's assertion of mistake

Even according to the statement of Non-Indicted 1 at the lower court, Non-Indicted 1 stated that “Non-Indicted 1 made economic difficulty before entering into an investment agreement,” and Non-Indicted 5, an employee of the tax accountant office, stated in the lower court that “Non-Indicted 1 made installment payments to the tax office with Defendant 1,” and Non-Indicted 9, who introduced Non-Indicted 1 to Defendant 2, stated in the lower court that “Non-Indicted 1, 1, was operating a health club called YB with Defendant 1,” and Non-Indicted 6, an employee of New Time Limit Non-Indicted 1, who was an employee of the lower court, should return 10 times the principal amount of investment to the witness or Defendant 1 in the process of making an investment agreement, and that the Defendants did not know that the above investment agreement was made more than 10 times before the date of preparing an investment agreement, and that there was no error in the lower court’s conclusion that the Defendants would have been distributed 100 million won of the investment agreement with Defendant 1’s key.”

C. As to the assertion of unfair sentencing by both parties on Defendant 2

Considering that Defendant 2 did not have criminal records, as well as the motive and background leading up to the crime of this case, the circumstances before and after the crime of this case, and other various matters stipulated in Article 51 of the Criminal Act, which are conditions for sentencing, such as the age, character and conduct, and environment of the above defendant, the defense counsel and the prosecutor of the above defendant, considering all the circumstances alleged in the grounds for appeal, the punishment of the suspended sentence of two years and fine of 50 million won is deemed appropriate in June of the above defendant's imprisonment with prison labor, and it cannot be deemed unfair because it is too heavy, too unreasonable, or too unreasonable. Thus, the grounds for appeal in this part are without merit.

3. Conclusion

Therefore, since the prosecutor's appeal against Defendant 1's acquittal portion, the prosecutor's appeal against Defendant 2 and the prosecutor's appeal against Defendant 2 are without merit, all of them are dismissed pursuant to Article 364 (4) of the Criminal Procedure Act, and since Defendant 1's appeal is with merit, the judgment below's conviction portion against Defendant 1 among the judgment below is reversed, and it is again decided as follows through pleading pursuant to Article 364 (6)

The summary of the facts constituting an offense and the evidence is as stated in each corresponding column of the judgment below except for the alteration of "from March 26, 2006 to December 2007" in paragraph (1) of the same Article to "from July 26, 2007 to December 2007", and " from December 1, 2006 to November 31, 2007 to " from November 31, 2007 to KRW 175,342,465" as stated in each corresponding column of the judgment of the court below. As such, it is cited in each corresponding column of the Criminal Procedure Act except for the alteration to "from November 26, 2007 to November 30, 2007 to "175,342,465 won".

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

The manufacture and sale of illegal drugs in the judgment: Article 3(1)2 and (2) of the Act on Special Measures for the Control of Public Health Crimes; Article 31(1) of the Pharmaceutical Affairs Act; Article 30 of the Criminal Act (Generally, Selection of Imprisonment and Imposition of Fine)

In the case of occupational embezzlement: Articles 356 and 355(1) of the Criminal Act (generally, referring to imprisonment)

1. Aggravation of concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2 and 3, and Article 50 (Aggravated Punishment is aggravated to imprisonment with prison labor as provided for in the Act on Special Measures for the Control of Public Health Crimes (Manufacture, etc. of Illegal Medicines) with heavier punishment, and a fine as provided for in the Act on Special Measures for the Control of Public Health Crimes in the Judgment) of the Criminal Act

1. Discretionary mitigation;

Articles 53 and 55(1)3 and 6 of the Criminal Act

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Suspension of execution;

Article 62(1) and (2) of the Criminal Act

From March 206 to July 25, 2007, Defendant 1 manufactured a new fresh, which is a medicine used for the following pharmaceutical purposes without obtaining permission from the Commissioner of the Korea Food and Drug Administration, despite Defendant 1’s violation of the Health Crimes Control Act. From 5, Defendant 1 made a new fresh on the same product production plant with kidic acid, lusium, lusium, lusium, lusium, lusium, lusium, lusium, lusium, lusium, and lusium 50 to 100 to 200 to 300 to 50 to 50 to 600 to 310 to 50 to 310 to 50 to 320 to 10 to 15 to 200 to 20 to 200 to 20 to 320 to 320 to 320 to 3,00 to 3 to 3 to 12000 to me.

However, as seen in Article 2-A (1) (a) above, the facts charged are identical to the facts charged in violation of the Pharmaceutical Affairs Act against which a summary order became final and the social facts that form the basis thereof are based, and the effect of the final summary order extends to the above facts charged until the issuance of the summary order. As such, this part of the facts charged constitutes the final and conclusive judgment, and thus, the judgment of acquittal should be rendered pursuant to Article 326 subparagraph 1 of the Criminal Procedure Act. However, as long as the court found Defendant 1 guilty of a violation of the Public Health Crimes Control Act as stated in the judgment against the above facts charged, the judgment of acquittal shall not be rendered separately in this part.

Judges Jeong Young-chul (Presiding Judge)