[1] Article 32 (1) 5 of the former Enforcement Decree of the Petroleum Business Act stipulating the duty to indicate the sale of non-listed products by a petroleum retailer that sells trademark products and non-listed products together, and Article 32 (3) of the former Enforcement Decree of the Petroleum Business Act stipulating that the detailed indication standards and indication methods of trademark products and non-listed products shall be determined by the notification of the Minister of Commerce

[2] The case holding that the former Petroleum Business Act, which punishs a petroleum retailer to sell a non-listed product without indicating the sale of the non-listed product, and the Enforcement Decree thereof, shall not be punished unless the related public notice was not established at the time of the act of selling the non-listed product, although the Minister of Commerce, Industry and Energy delegated specific

[3] The case holding that Article 32 (1) 5 of the former Enforcement Decree of the Petroleum Business Act, which provides for the duty to indicate the sale of non-listed products by a petroleum retailer that sells trademark products and non-listed products together, provides for the detailed indication standards and indication methods of trademark products and non-listed products under the above provision of Article 32 (3) of the former Enforcement Decree of the Petroleum Business Act shall be combined with those of Article 29 (1) 7 of the former Petroleum Business Act which are delegated to him

[1] Article 29(1)7 of the former Enforcement Decree of the Petroleum Business Act (amended by Act No. 7240 of Oct. 22, 2004), Article 35 subparag. 8 (see current Article 46 subparag. 10 of the Petroleum and Petroleum Substitute Fuel Business Act), Article 32(1)5 of the former Enforcement Decree of the Petroleum Business Act (amended by Presidential Decree No. 18796 of Apr. 22, 2005) (see current Article 43(1)7 of the Enforcement Decree of the Petroleum and Petroleum Substitute Fuel Business Act), Article 43(3) of the former Enforcement Decree of the Petroleum Business Act (amended by Act No. 7240 of Oct. 22, 2004) (see current Article 30 subparag. 7 of the Enforcement Decree of the Petroleum and Petroleum Substitute Fuel Business Act), Article 32(1)20 of the former Enforcement Decree of the Petroleum and Petroleum Substitute Fuel Business Act (see current Article 30 subparag. 17, 297) of the former Enforcement Decree of the Petroleum Business Act)

Defendant

Prosecutor

Daejeon District Court Decision 2004No1718 Delivered on October 8, 2004

The appeal is dismissed.

The grounds of appeal are examined.

Article 35 subparag. 8 and Article 29(1)7 of the former Petroleum Business Act (amended by Act No. 7240 of Oct. 22, 2004; hereinafter “Act”) provides that petroleum retailers shall punish “other acts that disturb sound petroleum distribution order” as provided in Article 29(1)7 of the Act. Meanwhile, Article 32(1)5 of the former Enforcement Decree of the Petroleum Business Act (amended by Presidential Decree No. 18796 of Apr. 22, 2005; hereinafter “Enforcement Decree”) provides that the Defendant is in violation of the standards for labeling products under Article 29(1)7 of the Act; Article 30 subparag. 2 of the former Enforcement Decree of the Petroleum Business Act (amended by the Act No. 300 of Apr. 22, 2005; hereinafter “Act”); Article 32(1)5 of the former Enforcement Decree of the Petroleum Business Act (amended by the Ordinance of the Ministry of Commerce, Industry and Energy No. 3; hereinafter the same shall apply).

Public notice, which is an administrative rule, shall be deemed to have the nature and effect of an external binding order in combination with the relevant statutory provisions. According to the interpretation of the relevant laws and regulations of this case, the act of selling non-listed products without such indication, such as the facts charged, shall be punished pursuant to Article 35 subparagraph 8 and Article 29 (1) 7 of the Act and Article 32 (1) 5 of the Enforcement Decree: Provided, That under Article 32 (3) of the Enforcement Decree, the specific standard of indication and method of indication, which constitute the standard of determining whether to implement the above provision, are stipulated as public notice by the Minister of Commerce, Industry and Energy, so that the specific standard of indication and method of indication, which constitute the standard of determining whether to implement the above provision, shall be combined with the relevant public notice of Article 32 (1) 5 and (3) of the Enforcement Decree, which constitute a crime of violating Article 35 subparagraph 8 and Article 29 (1) 7 of the Act. However, even if the above public notice of the facts charged of this case does not exist, it should not constitute an emergency standard of indication of Article 8 (3).

The Prosecutor’s assertion in the grounds of appeal is that Article 32(1)5 of the Enforcement Decree of the Public Prosecutor’s Act provides for the duty to identify gas stations outside the gas stations that sell trademark products and non-processed products (hereinafter “recognizable products”), and Article 32(3) of the Enforcement Decree provides for the duty to identify products inside the gas stations (hereinafter “internal identification mark”) and provides different criteria for application of each duty to indicate. However, such assertion is not acceptable, in light of Article 32(1)5 of the Enforcement Decree and Article 32(3) of the same Decree, even if it is established at the time of revision of the Enforcement Decree of the Petroleum Business Act on August 25, 201 as well as Article 32(1)2 of the Enforcement Decree of the Public Prosecutor’s Act, which does not provide for the definition of “discognizable products” under Article 32(1)2 of the former Enforcement Decree of the same Act, and thus, it cannot be seen that there is no need to interpret the content of the aforementioned provision as a comprehensive sale identification mark.

The court below's maintenance of the judgment of the court of first instance which acquitted the defendant is in accordance with the above statutory interpretation, and there is no error in the misapprehension of legal principles as to Article 32 (1) 5 and (3) of the Enforcement Decree, as otherwise alleged in the ground of appeal.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yang Sung-tae (Presiding Justice)