Whether a public prosecution can be instituted only when an accusation is filed by the Fair Trade Commission pursuant to Article 71(1) of the former Monopoly Regulation and Fair Trade Act that applies mutatis mutandis by Article 16(3) of the former Act on Fair Labeling and Advertising (affirmative)

Articles 3(1)1, 16(3), and 17 subparag. 1 of the former Act on Fair Labeling and Advertising (Amended by Act No. 11050, Sep. 15, 201); Article 71(1) of the former Monopoly Regulation and Fair Trade Act (Amended by Act No. 11937, Jul. 16, 2013); Article 327 subparag. 2 of the Criminal Procedure Act

Defendant

Defendant

LLC, Kim & Lee LLC, Attorneys Jeon-soo et al.

Suwon District Court Decision 2014No1329 decided July 24, 2014

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 1

Article 3(1) of the Act on Fair Labeling and Advertising (amended by Act No. 11050, Sept. 15, 201; hereinafter “Indication Advertising Act”) provides that “The business operator, etc. shall not engage in any of the following acts which are likely to undermine fair trade order as an act of labeling or advertising that is likely to deceive or mislead consumers, or cause other business operators to do so,” and subparagraph 1 provides false or exaggerated labeling or advertising.

In addition, the main text of Article 17 of the Act on the Labeling and Advertising provides that "any person falling under any of the following subparagraphs shall be punished by imprisonment for not more than two years or by a fine not exceeding 1.5 million won," and subparagraph 1 of Article 3 provides that "any business operator, etc. who makes unfair labeling or advertising in violation of the provisions of Article 3 (1), or makes another business operator do so," while Article 16 (3) provides that "the provisions of Article 71 of the Monopoly Regulation and Fair Trade Act shall apply mutatis mutandis to accusation of crimes under Article 17 of this Act," and Article 71 (1) of the Monopoly Regulation and Fair Trade Act (amended by Act No. 11937, Jul. 16, 2013; hereinafter "Fair Trade Act") provides that "any person who falls under any of the following subparagraphs may institute a public prosecution only when the Fair Trade Commission files a complaint against the crimes under Articles 66 and 67 shall be prosecuted."

According to the above relevant legal provisions, the crime under Article 17 of the Act on the Labeling and Advertising constitutes a case where a public prosecution can be instituted only when the Fair Trade Commission files an accusation under Article 71(1) of the Fair Trade Act which is applied mutatis mutandis by Article 16(3) of the Act on the Labeling and Advertising.

However, even if examining the record, there is no evidence to prove that there was an accusation by the Fair Trade Commission prior to the prosecution of this case on the facts charged against the defendant in violation of the Act on Labeling and Advertising.

If a public prosecution is instituted without such accusation, the court below should dismiss the public prosecution because the public prosecution procedure is invalid in violation of the provisions of the law. However, the court below did not examine this part of the facts charged and affirmed the judgment of the first instance court which found the defendant guilty.

Therefore, in so determining, the lower court erred by misapprehending the legal doctrine on the procedure for filing prosecution against a crime violating Article 3(1) of the Act on the Labeling and Advertising, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit

2. Regarding ground of appeal No. 2

For the reasons indicated in its holding, the lower court affirmed the first instance judgment convicting the Defendant of this part of the facts charged, on the ground that the instant malicious code removal program that the Defendant disseminated constitutes “a program that may interfere with the operation of an information and communications system, data, program, etc.” at least among “malicious program” under Article 48(2) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc.

Examining the reasoning of the lower judgment in light of the evidence duly admitted, although the lower court’s reasoning was somewhat inappropriate, the lower court did not err by misapprehending the legal doctrine on the criteria for determining “malicious program” under the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc., contrary to what is alleged in the grounds of appeal

The Supreme Court precedents required in the grounds of appeal are different from this case and are inappropriate to be invoked in this case.

3. As to grounds of appeal Nos. 3 and 4

For the reasons indicated in its reasoning, the lower court affirmed the first instance judgment convicting the victims of this part of the charges on this part, on the grounds that the lower court determined that the Defendant, as stated in the facts charged, could recognize the fact that the victims had been deceiving and had them pay the fees for the removal program of the

Examining the reasoning of the lower judgment in light of the evidence duly admitted, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on deception as a constituent element of fraud, certification of mistake on the part of the defrauded, and admissibility of evidence.

The Supreme Court precedents required in the grounds of appeal are different from this case and are inappropriate to be invoked in this case.

4. Scope of reversal

As seen earlier, the part of the judgment of the court below that violated the Act on Labeling and Advertising should be reversed, and that part is a single sentence in the court below on the ground that the remaining conviction and concurrent crimes under the former part of Article 37 of the Criminal Act are concurrent crimes, the judgment of the

5. 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 Kim So-young (Presiding Justice)