Defendant

Both parties

The highest number of cases (prosecution), the highest number of cases (public trial)

Attorney Park Gyeong-hwan

Daegu District Court Decision 2013Ma599 Decided August 13, 2013

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment with prison labor for not less than ten months and by a fine not exceeding fifteen thousand won.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted by 50,000 won into one day.

In 660 copies of packing materials for YOcheon Agricultural Cooperatives seized, and 1 Gacheon Agricultural Sticks (Seoul District Prosecutors' Office No. 348 No. 5, 6) shall be confiscated from the defendant.

In order to order the provisional payment of an amount equivalent to the above fine.

Of the facts charged in this case, the defendant is not guilty of violating the Act on Origin Labeling of Agricultural and Fishery Products with False Origin Labeling 80,000 kilograms, such as flutinous rice and glutinous rice.

1. Summary of grounds for appeal;

A. Defendant

In light of the fact that the defendant is against the law, the punishment imposed by the court below (the imprisonment of 10 months, fine of 15 million won) is too unreasonable.

(b) Prosecutors;

In light of the fact that the criminal nature of the defendant is poor, the punishment sentenced by the court below is too uneasible and unfair.

2. Ex officio determination

A. In the first instance trial, the prosecutor filed an application for the modification of a bill of amendment with the content of the facts charged as stated in the following facts constituting the crime, and since this court permitted this, the judgment of the court below is no longer maintained as it is, since the subject of the judgment was changed.

B. In addition, we examine ex officio the facts charged in this case as to the violation of the Act on Origin Labeling of Agricultural and Fishery Products, which falsely indicate the origin equivalent to 80,000 g of glutinous rice and glutinous rice (the facts charged in Section 1(A) of the original judgment).

(1) Summary of this part of the facts charged

From October 2, 2011 to October 22, 2012, the Defendant, purchased from the warehouse of △△△△△△△ located in Daegu Northern-gu (location omitted), from ○○○○, etc. located in the city of Gyeongcheon-dong, by means of a false indication of origin, by inserting the forged 80,000 gg of lutinous rice, etc. (176,000,000 won at the market price) into the packaging with the trademark marked by the Yecheon Agricultural Cooperative, which is not the Gancheon-gu, the Defendant, as the Gancheon Military Personnel, sold the school meal service company, etc. and distributed it to the school located in 709 and the hospital located in 38 places, etc.

(2) Determination

According to Articles 14 and 6(1)1 of the Act on Origin Labeling of Agricultural and Fishery Products, the act of making a false indication of origin or making an indication that is likely to cause confusion with the country of origin is prohibited. According to Article 2(4) of the same Act, the country of origin of agricultural products refers to the country or region in which agricultural products are produced and collected. Therefore, the act of falsely indicating the country of origin of agricultural products refers to the act of falsely stating the country or region in which agricultural products are produced and collected.

However, in full view of the following circumstances that can be recognized by the evidence duly adopted and examined by the lower court and the trial court, namely, the Defendant contained agricultural products produced in Korea, other than Gyeongcheon-do, in the packaging paper, in which the country of origin was indicated as “Korea” but did not indicate it as “Gyeongcheon-cheon,” and solely on the circumstance that there is an indication of Ycheon Agricultural Cooperative’s origin in the packaging paper, it is difficult to deem the above agricultural products as “Gyeongcheoncheon-cheon,” solely on the sole ground that there is an indication of Ycheon-do Agricultural Cooperative,” and that it is difficult to deem that the Defendant’s origin was indicated as “Korea” by specifying the above agricultural products as “Korea.” Since most of the agricultural products packed as above are considered as domestically produced agricultural products, it is difficult to deem that the Defendant’s origin was falsely indicated as “Korea”, the evidence submitted by the Prosecutor

3. Conclusion

Therefore, the judgment of the court below is reversed under Article 364(2) and (6) of the Criminal Procedure Act without a need to decide on the assertion of unfair sentencing by the defendant and the prosecutor, and it is again decided as follows.

The summary of the facts constituting the crime and evidence acknowledged by the court below is to delete Article 1-A of the facts constituting the crime in the judgment below, and Article 1-2 (b) of the same Act provides that "the defendant 1 purchases, from August 2, 2012 to October 22, 2012, from the warehouse of the above △△△△△△ to combine the domestic shoulder with 7:3 percentage of domestic agricultural products, such as mixing them with 7:3 percentage of domestic agricultural products, such as domestic shoulderes and ○○○, etc. purchased from the warehouse of the above △△△△△△△△△△△△△ to October 2, 201, after mixing them with 7:3 percentage of domestic products, and then putting them into packages with 6,904,00 won in total at school, etc. with the country of origin marked as domestic products, thereby falsely indicating the origin of domestic products." Since the defendant 1-2 (Ga) of the criminal facts changed from △△△△△△ Group to 30."

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

Articles 14 and 6(1)1 of the Act on Origin Labeling of Agricultural and Fishery Products (the false indication of origin, the concurrent imposition of imprisonment and fines), Article 34 Subparag. 4 of the Grain Management Act, Article 20-3(1)2 of the Grain Management Act (the violation of the Grain Management Act, the choice of imprisonment), Article 93 of each Trademark Act (the violation of the Trademark Act, and the choice of each imprisonment)

1. Aggravation for concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Confiscation;

Article 48(1) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

The fact that the defendant's mistake is divided and seriously reflected, and that there is a family member to support the defendant is a favorable situation.

Meanwhile, in light of the method, period, scale, etc. of the crime of this case, the crime of this case is very poor; the crime of this case is likely to interfere with the sound distribution order of agricultural products and undermine consumer confidence, and thus there is a need for strict punishment; and the defendant commits the crime of this case without being aware of the past record of punishment two times due to the same crime; and the defendant commits the crime of this case without being able to do so.

In full view of the above circumstances, other circumstances shown in the records and pleadings, such as character, conduct and environment of the defendant, etc., the same sentence as the disposition shall be determined.

The summary of this part of the facts charged is the same as that of Article 2-2(b)(1), which constitutes a case where there is no proof of facts constituting a crime as prescribed in Article 2-2(2), and thus, the defendant is acquitted under the latter part of Article 325 of the Criminal

[Attachment]

Judges Kim Sung-soo (Presiding Judge)