[1] Whether “foods” under Article 2 subparag. 1 of the Food Sanitation Act include natural food (affirmative), and the standard for determining whether products produced from nature constitute “foods” under the Food Sanitation Act from any stage of a certain stage / Whether the concept of “foods” under the Food Sanitation Act may vary depending on the amendment of food-related statutes, the development of food-related industries, and changes in eating habits (affirmative)

[2] Whether a two-waves and drys and added by themselves constitute “food” under Article 2 subparag. 1 of the Food Sanitation Act (affirmative)

[1] Article 2 subparagraph 1 of the Food Sanitation Act provides that "food" refers to all kinds of food (excluding food taken as medicine). The above food includes not only processed and cooked food but also natural food. However, whether products produced from nature constitute "food" under the Food Sanitation Act from any stage, the legislative purpose of the Food Sanitation Act (Article 1 of the Food Sanitation Act), such as the Food Sanitation Act and the Enforcement Decree thereof, the provisions and regulations of the relevant Acts and subordinate statutes, such as the Food Sanitation Act and the Rural Community Act, the Framework Act on Agriculture, Rural Community and Food Industry, the Food Industry Promotion Act, and the Quality Control Act, and the sanitary monitoring of food production, sale, transportation, etc., should be determined in consideration of the need to regulate food as a whole, and the concept of food habits or universal food.

In addition, the concept of “food” under the Food Sanitation Act may vary depending on the revision of food-related Acts and subordinate statutes, the development of food-related industries, and changes in food habits. Thus, in the past, the concept of “food” under the Food Sanitation Act may be considered as “food” under the Food Sanitation Act.

[2] According to the delegation of Article 6 of the former Food Sanitation Act (amended by Act No. 2971 of Dec. 31, 1976), the "standards and standards for food, etc." of the Ministry of Health and Welfare, which established the standards and standards of food, has been amended by the Ministry of Health and Welfare No. 81-26 of Apr. 11, 1981; the general standards for "natural food," such as provisional standards for content, were newly established; since the Framework Act on Agriculture and Rural Community enacted in 199 was wholly amended by Act No. 8749 of Dec. 21, 2007, Article 3 subparagraph 7 (a) of the same Act provides that "any person may drink or drink food, etc.;" which does not meet the current standards for food sanitation management; thus, it does not conform with the current standards for food sanitation management, such as food sanitation regulations, under the premise that it does not conform with the current standards for food sanitation and the current standards for food sanitation management; and the current standards for food sanitary standards and other standards for food products.

[1] Article 1 and Article 2 subparag. 1 of the Food Sanitation Act / [2] Article 2 subparag. 1 and Article 7(1) of the Food Sanitation Act, Article 6 (see current Article 7 of the former Food Sanitation Act), Article 4 and Article 94 subparag. 1 (see current Article 94(1) subparag. 1) of the former Food Sanitation Act (Amended by Act No. 11986, Jul. 30, 2013); Article 3 subparag. 7(a) of the former Framework Act on Agriculture, Rural Community and Food Industry (Amended by Act No. 1356, Jun. 22, 2015)

[1] Supreme Court Decision 88Do2312 delivered on July 11, 1989 (Gong1989, 1266)

Defendant 1 and one other

Defendant 1 and Prosecutor

Hapy Law Firm, Attorneys Cho Jong-ho et al., Counsel for the defendant-appellant

Seoul Western District Court Decision 2014No1724 decided December 10, 2015

All appeals are dismissed.

The grounds of appeal are examined.

1. As to Defendant 1’s ground of appeal

A. As to each violation of the Food Sanitation Act

1) Of the facts charged in the instant case, the summary of Defendant 1’s violation of the Food Sanitation Act against Defendant 1 is as follows: (a) in collusion with Defendant 2, Defendant 1 imported, stored, and sold them for the purpose of selling fungsing fungs in the process of corruption, and imported, stored, and sold them for the purpose of selling fungsing fungs, a foreign substance, in progress; and (b) imported, stored, or sold for the purpose of selling, an infungs with soil dust.

Based on its stated reasoning, the lower court found the Defendants guilty of all the charges on the grounds that not only fall under food under the Food Sanitation Act that is imported, stored, and sold by the Defendants, but also the total quantity thereof is likely to harm the health of the human body provided for in Article 4 of the Food Sanitation Act or that hazardous substances are likely to be buried.

2) As to the grounds of appeal that does not constitute “food” under the Food Sanitation Act, both waves and drys

(A) Article 2 Subparag. 1 of the Food Sanitation Act provides, “The term “food” means all kinds of food (excluding food taken as medicine). The above food includes not only processed and cooked food but also natural food (see Supreme Court Decision 88Do2312, Jul. 11, 1989, etc.). However, whether products produced from nature constitute “food” under the Food Sanitation Act from any stage to any stage shall be determined by comprehensively taking into account the legislative purpose of the Food Sanitation Act (Article 1 of the Food Sanitation Act), the Food Sanitation Act, the Enforcement Decree thereof, the Framework Act on Agriculture, Rural Community and Food Industry, the Food Industry Act, the Food Industry Promotion Act, and the Agricultural and Fishery Products Quality Control Act, and the need to regulate food by considering the need to regulate the production, sale, transportation, etc. of food, and the common sense of food and food concept in our society.

In addition, the concept of "foods" under the Food Sanitation Act may vary depending on the revision of food-related Acts and subordinate statutes, the development of food-related industries, and changes in food habits, and thus, in the past, it may be deemed that it does not fall under "foods" under the Food Sanitation Act.

(B) ① According to the delegation of Article 6 of the former Food Sanitation Act (amended by Act No. 2971 of Dec. 31, 1976), public notice of the Ministry of Health and Welfare setting the food standards and specifications is amended by Act No. 81-26 of Apr. 11, 1981, the general standards for “natural food” such as provisional standards for content, and ② The Framework Act on Agriculture and Rural Community enacted in 199 was wholly amended by Act No. 8749 of Dec. 21, 207, its title has been changed to the Framework Act on Agriculture, Rural Community and Food Industry, and thus, Article 3 subparag. 7 (a) added regulations to define “agricultural products that people can drink or drink directly,” and such regulations have been maintained as well as those for food sanitation, which are not in conformity with the current standards for food sanitation and food spreading standards prescribed by social norms, and also are not in conformity with the current standards for food sanitation and food spreading standards prescribed by Ordinance of the Ministry of Food and Drug Safety.

Therefore, the court below is just to have determined that a product constitutes a food under the Food Sanitation Act, and it did not err by misapprehending the legal principles on food under the Food Sanitation Act, contrary to Defendant 1’s allegation in the grounds of appeal.

The Supreme Court Decision 79Do33 Decided April 24, 1979 cited in the grounds of appeal is not appropriate to be invoked in the instant case, as seen earlier, due to the amendment of food-related Acts and subordinate statutes and changes in the eating habits of our society or the concept of universal food.

3) As to the grounds of appeal not falling under “foods likely to harm human health” as stipulated in Article 4 of the Food Sanitation Act, both waves and drys

Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court’s determination on this part is also justifiable, and contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the interpretation of Article 4 of the Food Sanitation

B. As to occupational breach of trust in relation to ○○ Distribution

For the reasons indicated in its reasoning, the lower court upheld the first instance judgment that convicted Defendant 1 of this part of the facts charged. Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court’s determination is just and acceptable. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on intention in the crime

2. As to the Prosecutor’s Grounds of Appeal

Based on its stated reasoning, the lower court upheld the first instance judgment that acquitted the Defendants on the ground that the Defendants’ occupational breach of trust related to △△ food constitutes a case where there is no proof of crime.

Examining the reasoning of the judgment below in light of the records, the aforementioned judgment of the court below is just. Contrary to the allegations in the grounds of appeal, the court below did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal principles on property

On the other hand, although the prosecutor appealed to the entire judgment of the court below, the prosecutor did not state the grounds of objection in the petition of appeal or appellate brief.

3. Conclusion

Therefore, all appeals by Defendant 1 and prosecutor are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il (Presiding Justice)