The meaning of "a person who is not designated as a retailer" subject to subparagraph 1 of Article 27-3 of the former Tobacco Business Act and whether a person subject to a disposition of suspension of business after designation as a retailer is subject to a disposition of suspension of business, but has not yet been legally revoked (negative)

In light of Articles 12(2), 16(1), 17(1)4, 17(2), and 27-3 subparag. 1 of the former Tobacco Business Act (amended by Act No. 12269, Jan. 21, 2014; hereinafter “former Tobacco Business Act”), along with the content, form, and literal meaning of penal provisions, the general principle of the principle of no punishment without law prohibiting the expanded interpretation of penal provisions, “a person who is not designated as a retailer” subject to Article 27-3 subparag. 1 of the former Tobacco Business Act shall be deemed to mean a person who is not designated as a retailer from the beginning or whose designation as a retailer was revoked after being designated as a retailer, and a person whose designation as a retailer has not been lawfully revoked after being issued a disposition of business suspension.

Article 12(1) of the Constitution of the Republic of Korea; Article 1(1) of the Criminal Act; Articles 12(2), 16(1), 17(1)4 and (2), and 27-3 subparag. 1 (see current Article 27-2(2)1) of the former Tobacco Business Act (Amended by Act No. 12269, Jan. 21, 2014);

Defendant

Prosecutor

Attorney Kim Jong-tae

Suwon District Court Decision 2010No2294 decided October 28, 2010

The appeal is dismissed.

The grounds of appeal are examined.

The interpretation of penal provisions must be strict, and the interpretation of the meaning of the express provision to the disadvantage of the defendant is not permitted because it is against the principle of no punishment without the law (see Supreme Court Decision 2002Do4758 delivered on November 24, 2005, etc.).

The former Tobacco Business Act (amended by Act No. 12269, Jan. 21, 2014; hereinafter “former Tobacco Business Act”) provides that a person who intends to engage in a tobacco retail business shall obtain designation as a retailer from the head of a Si/Gun/Gu having jurisdiction over the location of the place of business (Article 16(1)); a person who is not a retailer shall not sell tobacco to consumers (Article 12(2)); and a person who sells tobacco to consumers without designation as a retailer in violation of Article 12(2) (Article 27-3 subparag. 1). Meanwhile, the former Tobacco Business Act provides that the head of a Si/Gun/Gu may order a retailer to suspend his/her business for a specified period not exceeding one year, and the head of a Si/Gun/Gu shall revoke the designation of a retailer when the retailer engages in a retail business during the period of suspension of business (Article 17(2) and (1)4).

In light of the contents, form, and literal meaning of the provisions of the former Tobacco Business Act and the general principles of the principle of no punishment without law prohibiting the expanded interpretation of penal laws, “a person who is not designated as a retailer” subject to Article 27-3 subparag. 1 of the former Tobacco Business Act shall be deemed to mean only a person who is not designated as a retailer from the beginning or whose designation as a retailer was revoked after being designated as a retailer, and a person whose designation as a retailer was revoked after being subject to a disposition of business suspension but has not yet been revoked lawfully.

In light of the above legal principles, even if the defendant designated as a retailer sold tobacco to consumers during the suspension period after receiving an order for suspension of business, the court below reversed the judgment of the court of first instance which found him guilty of the facts charged of this case and sentenced him/her not guilty of the facts charged of this case, and there is no error in the misapprehension of legal principles as to Articles 27-3 subparag. 1 and 12(2) of the former Tobacco Business Act, contrary to what is alleged in the grounds of appeal. The judgment of the Supreme Court cited in the grounds of appeal is inappropriate to be invoked in this case because the case is different.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)