[1] Where a business operator falsely or exaggeratedly displays or advertises functional health foods after the enforcement of the Health Functional Foods Act, the relevant penal provision

[2] The case holding that the court below's measures against the crime of violating the Food Sanitation Act are unlawful without examining whether the products sold by the defendant constitute functional health foods under the Health Functional Foods Act

[1] In full view of the provisions of Article 3 subparag. 1, Article 14(1), Article 18(1), and Article 44 subparag. 4 of the Health Functional Foods Act and Articles 1 and 5 of the Addenda of the same Act (amended by Aug. 26, 2002), in cases where a business operator makes false or exaggerated indications or advertisements on health functional foods after August 27, 2003, when the Act on Health Functional Foods enters into force, it may be punished pursuant to Article 4 subparag. 4 and Article 18(1) of the same Act, and the penal provision of the Food Sanitation Act (amended by Articles 77 subparag. 1 and 11(1) of the same Act) shall be excluded.

[2] The case holding that the court below's measures against the crime of violating the Food Sanitation Act are unlawful without examining whether the products sold by the defendant constitute functional health foods under the Health Functional Foods Act

[1] Articles 3 subparag. 1, 14(1), 18(1), and 44 subparag. 4 of the Health Functional Foods Act; Articles 1 and 5 of the Addenda (amended by August 26, 2002) / [2] Articles 18(1) and 44 subparag. 4 of the Health Functional Foods Act; Articles 11(1) and 77 subparag. 1 of the Food Sanitation Act

Defendant

Defendant

Busan District Court Decision 2005No2117 delivered on September 7, 2005

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

The grounds of appeal are examined.

Article 3 subparag. 1 of the Health Functional Foods Act (amended by Act No. 6727 of Aug. 26, 2002) defines "health functional foods" as foods manufactured or processed in the form of refined, given, melting, subdividing, subdividing, liquid, exchange, etc. using raw materials or ingredients that have functionality useful to the human body. Article 14(1) of the same Act provides that the Commissioner of the Korea Food and Drug Administration shall determine and publicly notify the standards and specifications for the manufacture, use, preservation, etc. of health functional foods for sale, and Article 44 subparag. 4 of the same Act provides that "No. 18(1) of the same Act shall be punished by imprisonment with labor for not more than five years or by a fine not exceeding 50,000 won, and Article 18(1) of the same Act provides that "no. 2 of the same Act shall be punished by mistake or confusion after the date of entry into force of the Food Sanitation Act, and no provision 8(1) of the same Act shall be applied to the same Act."

However, as seen earlier, Article 14(1) of the Health Functional Foods Act provides that the Commissioner of the Korea Food and Drug Administration shall determine and publicly announce the standards and specifications for the manufacture, use, and preservation of health functional foods for sale. According to Article 3-12 of the "Standards and Specifications for Health Functional Foods" prescribed by the Commissioner of the Korea Food and Drug Administration, croquerel products are publicly announced as one of health functional foods. Meanwhile, according to the data submitted by the Defendant in the request for the formal trial of this case, (i) Korea croquerelcquerels obtained a business license for manufacturing health functional foods from the Commissioner of the Korea Food and Drug Administration on July 2004 and reported the manufacture of health functional food products "Necocquerel" with crocquerels sold by the Defendant.

If so, if Croquerels sold by the defendant correspond to functional health foods stipulated in the Health Functional Foods Act, Article 18 (1) of the same Act shall not apply to the defendant's act as stated in the judgment of the court below. Thus, Article 18 (1) of the same Act shall not apply to the defendant's act. Thus, the court below should have tried this point more and should have tried to determine whether Croquerels sold by the defendant correspond to functional health foods stipulated in the above Act, but the court below sentenced the defendant guilty by applying the defendant's act to the crime of violating the Food Sanitation Act as stated in the judgment of the court below without deliberation. Thus, the court below erred by failing to exhaust all deliberation, which affected the conclusion of the judgment, and the ground of appeal pointing this out is with merit.

Therefore, the judgment 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 Shin Shin-chul (Presiding Justice)