Whether it is necessary to clarify the purport of the prosecutor by exercising his/her right of explanation in cases where the descriptions of the facts charged / Whether the prosecutor’s right of explanation may be exercised, in which the misunderstanding of the facts charged is caused or not (affirmative)

Article 254(4) of the Criminal Procedure Act, Article 141 of the Regulation on Criminal Procedure

Supreme Court Decision 92Do1532 Decided September 14, 1992 (Gong1992, 2932) Supreme Court Decision 93Do113 Decided July 13, 1993 (Gong1993Ha, 2330), Supreme Court Decision 94Do1680 Decided December 9, 1994 (Gong195Sang, 531), Supreme Court Decision 201Do10468 Decided November 10, 2011

Defendant

Prosecutor

Seoul Northern District Court Decision 2013No1345 decided February 6, 2014

The judgment of the court below is reversed, and the case is remanded to the Seoul Northern District Court Panel Division.

The grounds of appeal are examined.

1. The judgment of the court below

Of the facts charged in the instant case, the summary of the violation of the Food Sanitation Act of April 10, 2013 is that the Defendant, who is engaged in the food sales business, advertised lurering trees in the sports Seoul newspaper at the same time, and expressed and advertised that he/she has efficacy and effect on the prevention and treatment of diseases, such as curology, blood transfusion, and blood pressure, on the ground of consumers’ experience skills.

(1) The lower court determined that the Defendant’s act of selling food is not merely an advertisement of “forest products” under Articles 97 subparag. 1 and 13(1) of the former Food Sanitation Act (amended by Act No. 11986, Jul. 30, 2013; hereinafter the same) and Article 8(1)2(2) of the Enforcement Rule of the Food Sanitation Act, on the premise that a public prosecution was instituted against the facts charged under the premise that the indictment was not instituted against the Defendant under Article 13(1) of the same Enforcement Rule. (2) of the same Enforcement Rule, which merely cut off yellow trees sold by the Defendant, without using food additives or other raw materials, and thus, it does not constitute a crime under Article 25(2) subparag. 6(main sentence) of the Enforcement Decree of the Food Sanitation Act, and thus, it does not constitute a crime under Article 25(2) subparag. 2(b) of the same Enforcement Decree where the Defendant’s act of selling food products is not subject to false labelling or false labelling. (2).

2. Judgment of the Supreme Court

However, the above judgment of the court below is hard to accept.

A. The facts charged in the indictment are required to limit the object of a trial against the court and facilitate the exercise of the defendant's right to defense by specifying the scope of defense, so it is desirable to clearly specify the facts, such as the date, time, place, method, etc. of the crime, but as long as it is necessary, it may interfere with the institution and maintenance of the public prosecution. Thus, the date and time of the crime may not conflict with the time of double prosecution or prescription, the place is sufficient to measure territorial jurisdiction, and the method is sufficient to state to the extent that the elements of the crime are specified (see Supreme Court Decision 92Do1532, Sept. 14, 1992).

In addition, if the purport of the facts charged is clear, the court does not need to exercise its right of explanation against it, but if the descriptions of the facts charged cause misunderstandings or fails to make a clear statement, the court should exercise its right of explanation against the prosecutor pursuant to Article 141 of the Regulation on Criminal Procedure (see Supreme Court Decisions 93Do113, Jul. 13, 1993; 94Do1680, Dec. 9, 1994; 201Do10468, Nov. 10, 201).

B. Meanwhile, Article 13(1) of the former Food Sanitation Act provides that "any person shall not display or advertise the name, manufacturing method, quality and nutrition labelling, genetically modified foods, etc. falling under any of the following subparagraphs with respect to the indication of food traceability and genetically modified foods, etc., and shall not put in an exaggerated package for packages. The same shall also apply to the nutritional value, raw materials, ingredients, and uses of foods or food additives." Article 13(1)1 provides that "an indication or advertisement with contents that have the efficacy and effect in the prevention and treatment of diseases," and Article 13(2) of the same Act provides that "an indication or advertisement with false indication, exaggerated advertisement, slander advertisement, and package packaging under paragraph (1) and other necessary matters shall be prescribed by Ordinance of the Prime Minister."

In addition, Article 8(1) of the Enforcement Rule of the Food Sanitation Act, which is the Ordinance of the Prime Minister, provides that "The scope of false labelling and exaggerated advertisements under Article 13 of the Act shall be any of the following acts among acts of indicating or informing the name, manufacturing method, quality, nutrition, raw materials, ingredients or use of food, etc. by means of containers, packages, radio, television, newspapers, magazines, music, video, printed materials, printing materials, signboards, Internet, and by other means," and subparagraph 2 of Article 8 of the Enforcement Rule of the Food Sanitation Act provides that "an indication and advertisement that has efficacy in the prevention or treatment of diseases" and subparagraph 13 of Article 13 provides that "an advertisement using an experience machine":

C. Examining the reasoning of the judgment below in light of the aforementioned legal principles and statutes, it is reasonable to view the facts charged as “advertisement using experience equipment” under Article 8(1)13 of the Enforcement Rule of the Food Sanitation Act, which constitutes “an indication and advertisement with contents that have efficacy and effect in the prevention and treatment of diseases,” which is prohibited under Article 13(1)1 of the former Food Sanitation Act.

(4) In light of the above facts charged, insofar as the phrase “1 of the above facts charged was written in accordance with the form of Article 13(1)1 of the former Food Sanitation Act,” it is difficult to see only the scope and scope of the advertisement under Article 8(1)2 of the Food Sanitation Act, and the following circumstances revealed by the record, i.e., the lower court’s posting of the above facts charged on the advertisement 1 of the Food Sanitation Act on the following grounds: (i) it is difficult for the prosecutor to find that the above facts charged were identical to the above facts charged on the ground that “1 of the Food Sanitation Act, 3 of the Act No. 1 of the Food Sanitation Act, 1 of the Food Sanitation Act, 2 of the above facts charged, 3 of the Food Sanitation Act, which is difficult for the prosecutor to use.” (ii) It constitutes an advertisement using the same experience machine as 1 of the Food Sanitation Act, and there is no difference between the above facts charged by the prosecutor to the effect that the above facts charged were recorded on the advertisement 2 of the Food Sanitation Act No.3 of the same.

D. In addition, even if the violation of the Food Sanitation Act on April 10, 2013 was committed on the first day of the Food Sanitation Act, Article 13(1)1 and (2) of the Food Sanitation Act, and Article 8(1)2 of the Enforcement Rule of the Food Sanitation Act prohibits “an indication and advertisement that has efficacy in the prevention or treatment of diseases” from being prosecuted, the court below should have clearly determined the purport of the indictment by exercising the right to request the inspection of the public prosecutor, but the court below reversed the first instance judgment that found the Defendant guilty of the above facts charged, without exercising any right to request the inspection of the public prosecutor.

E. Therefore, the part of the lower judgment which acquitted was erroneous by misapprehending the legal doctrine regarding the specification of the facts charged and the subject of adjudication, or by failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal assigning this error

3. Scope of reversal

As seen earlier, the part of the judgment of the court below not guilty should be reversed. Since the part of the judgment of the court below is related to the remaining guilty part and a single sentence should be sentenced to the whole, the judgment of the court below should be reversed in its entirety.

4. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il (Presiding Justice)