Whether it falls under the act of producing fertilizers under Articles 28 and 11 of the Fertilizer Control Act by subdividing the existing fertilizers into the packaging;

Article 28 subparag. 2 and Article 11 of the Fertilizer Control Act provides that a person who intends to engage in the business of producing and selling fertilizers shall be punished for the cases where he produces and sells fertilizers without obtaining permission from the Minister of Agriculture and Fisheries or the Minister of Trade, Industry and Energy, or without obtaining permission by item. Thus, the act of inserting soil-quality improvement fertilizers produced by a fertilizer production company by arbitrarily subdividing them into the packaging where the fertilizer is made shall not be deemed to constitute an act of producing fertilizers, such as the manufacture, mixing, processing, or gathering of any new fertilizer under the above Act.

Articles 11 and 28 of the Fertilizer Control Act

Defendant 1 and two others

Defendants and Prosecutor (Defendant, Defendant 1, and Defendant 2)

Seoul Criminal Court of the first instance (86 High Court Decision 4615)

The judgment of the court below is reversed.

Defendant 1 shall be punished by imprisonment with prison labor for one year and by imprisonment with prison labor for ten months.

The number of detention days prior to the pronouncement of the judgment of the court below shall be 80 days each included in the penalty.

However, the execution of the above punishment shall be suspended for two years from the date of the final judgment.

Defendant 2’s violation of the Fertilizer Control Act among the facts charged in the instant case and Defendant 3 are acquitted.

Seized halogen 50gs of fertilizers shall be confiscated from Defendant 1, 2(No. 3) and one sapper (No. 4)

The court below found Defendant 1 and 2 guilty on the charge of violation of the Fertilizer Control Act in the facts charged in this case against the Defendants on the following grounds: (a) although there was no proof of crime, the court below found Defendant 1 and 2 guilty on the charge; and (b) there was a relation between fraud with the same Defendants and substantial concurrent crimes with the former part of Article 37 of the Criminal Act; and (c) the court below rendered a single sentence, and thus, the judgment of the court below shall

Therefore, the judgment of the court below is reversed in accordance with Article 364(2) and (6) of the Criminal Procedure Act, and the members are again decided as follows.

1. Defendant 1

On March 25, 1986, Nonindicted Party 1: (a) registered with the Korean Intellectual Property Office on January 23, 1978 as Category I, including the trademark registration No. 53195; (b) designated goods mixed fertilizer; and (c) on December 16, 1980, Non-Indicted Party 2’s product 4 combined fertilizer(s) and 500 grams of Non-Indicted Party 2’s product 4 combined fertilizer(s) and 500 grams of Non-Indicted Party 2’s product 13,50 packaging were arbitrarily printed on 13,50 packaging; and (d) between May 2 through May 9, 1978 and May 9, 197, Non-Indicted Party 1 included Non-Indicted Party 1 in the Defendant’s office located in the Dong-gu (detailed address omitted); and (d) the name of Non-Indicted Party 2 and Non-Indicted Party 31’s trademark right that produces the same halog and 500’s’s.”

2. Defendant 1 and 2 conspired:

On May 10, 1986, at around 13:00, the victim non-indicted 3's management (trade name omitted) located in the area (detailed address omitted) Non-indicted 3, a fake fertilizer produced in the non-indicted 2 corporation, which had been sold at the low price due to the company's circumstances. The purchase of the fake fertilizer was made by deceiving the above victim, sold 150,000 won to the person who believed to be true, and received 150,000 won as the price. In addition, the above fake fertilizer 5,600 won was sold over twice as shown in the separate sheet and received 6,100,000 won in total with the price paid.

1. Each statement that conforms to the facts stated in the court by the Defendants

1. Each statement that conforms to the facts indicated in the judgment among the suspect interrogation protocol prepared for handling affairs by prosecutors and judicial police officers against the Defendants;

1. Each statement that conforms to the facts stated in the judgment in each written statement concerning Nonindicted 9, 10, 5, 6, 7, 8, 3, 4, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, and 25 of the preparation of administrative affairs by the senior judicial police officer against Nonindicted 4 in the preparation of the prosecutor’s protocol of statement;

1. Records consistent with the judgment in the records of seizure of affairs conducted by judicial police officers;

Defendant 1: Articles 60 and 36 subparag. 1 of the Trademark Act, Article 57(1) of the Design Act, and Article 40 of the Criminal Act (Appointment of imprisonment with prison labor, with prison labor, with the meaning of punishment imposed on a more bad offense)

Article 48 (1) 1 of the Criminal Act

Each defendant: Article 347(1) of the Criminal Act (Appointment of Imprisonment)

Article 37 (Aggravation of Article 37, Article 38 (1) 2, and Article 50 (Aggravation of Punishment and Crimes)

Article 57

Article 62 (Cases of Violation of Trademark Act and Design Act shall be subject to Punishment of Victims, Partial Agreement of Fraudulent Victims, and Determination of Opening)

Of the facts charged of this case, the defendants' violation of the Fertilizer Control Act

“1. Defendant 1:

On March 25, 1986, without permission from the relevant authorities, printed 13,50gs of Class 4 composite fertilizer(s) and 500gs of the expropriation of Class 2 Co., Ltd. in Jung-gu, Seoul (detailed address omitted), Non-Indicted. 2 Co., Ltd. in the packaging site, and produced Dara (Non-Indicted.) which had no ingredients of fertilizer, such as nitrogen, human acid, and potas, from May 5 to September of the same year by inserting 1986 in the Defendant’s house located in the Dong-gu, Gwangju (detailed address omitted), which had no ingredients of fertilizer, such as nitrogen, acid, and potas, which are produced by Non-Indicted. 2 Co., Ltd. in the packaging site, and producing 9,378gs of fertilizers, the names and appearance of which are identical;

2. According to Defendant 2 and 3’s agreement with the above non-indicted 2 (Co-defendants) and the above acts of purchasing and selling 50gs of fertilizers with the name of 25 kilograms for improving the quality of (company name omitted) in the dry field located in Gwangju-gu, Gwangju-gu, and the above acts of purchasing and selling them into fertilizers were decided to sell 50gs of the above facts charged, without permission and registration to the relevant authorities. From March 4, 1985 to the 20th day of the above month, the above acts of purchasing and selling 10gs of the above facts charged by the non-indicted 26 co-productions of the above facts that the above acts of purchasing and selling 10,000gs of the above facts charged are nothing more than the above acts of collecting and selling 10,000s of fertilizers, and the above acts of collecting and selling 100gs of fertilizers of the above facts charged are nothing more than the above acts of collecting and selling 200gs of the above facts charged.

In the end, the defendants' violation of the above provisions of the Fertilizer Control Act should be pronounced not guilty under the latter part of Article 325 of the Criminal Procedure Act because they fall under the absence of proof of crime. However, since the facts charged as to the defendants 2 were indicted as a violation of the above Fertilizer Control Act and a violation of the Trademark Act and the Design Act, and the above violation of the Trademark Act and the Design Act were convicted, the defendants 2 and 3 shall not be acquitted separately from the disposition of the above.

It is so decided as per Disposition for the above reasons.

Judges' Maintenance (Presiding Judge) and Min Il-young