[1] The principle of no punishment without law and the limitation of delegated legislation

[2] Whether the provisions of Article 11 of the Food Sanitation Act and Article 6 (1) of the Enforcement Rule of the same Act are in violation of the limit of delegated legislation or the principle of no punishment without law (negative)

[3] Whether Article 11 of the Food Sanitation Act is applicable in a case where an expression that may lead to confusion with a medicine is used in displaying or advertising food not approved as a medicine even if the efficacy of medical treatment is for ordinary food (affirmative)

[4] The case holding that the advertisement of health assistance foods posted in daily newspapers, etc. is an exaggerated advertisement on the ground that there is a high possibility that they can be perceived as having a special efficacy in recovering only the secret.

[1] Since it is virtually impossible to stipulate all laws and regulations related to criminal punishment by law within a formal meaning without exception due to complex and diversification of social phenomenon, the limit of professional and technical ability of the National Assembly, and the limit of time adaptation ability, it is not appropriate to do so, the delegation legislation is allowed under the premise that the act subject to punishment is clearly defined in the aspect of elements of punishment, and in the case of punishment, the delegation legislation is not contrary to the principle of no punishment without law, only when there is an urgent need, or there is an inevitable circumstance in which it is impossible to determine specifically in advance the act subject to punishment in the aspect of elements of punishment.

[2] Article 11(2) of the Food Sanitation Act delegates the scope of this exaggerated advertisement, etc. and other necessary matters to the Ordinance of the Ministry of Health and Welfare is derived from considering that it is practically impossible to stipulate the contents of the laws and regulations related to criminal punishment due to exaggerated advertisements in the form of a formal and meaningful law, and Article 6(1) of the Enforcement Rule of the same Act provides that the act subject to punishment can be predicted, so the provisions of Article 11 of the Food Sanitation Act and Article 6(1) of the Enforcement Rule of the same Act cannot be deemed to be in violation of the limit of delegated legislation or the principle of legality.

[3] Even though ordinary food has the efficacy of treating diseases, insofar as the product was approved as food under the Food Sanitation Act, and is not authorized as medicine, the food subject to the regulation of the Food Sanitation Act is excluded from medicine from the beginning by Article 2 subparagraph 1 of the same Act. Thus, if an expression that may lead to confusion with medicine is used in labeling or advertising the food, it goes beyond the scope as an indication or advertisement concerning the food, and it is likely to cause harm to the consumer's sanitation by itself as a false indication or an exaggerated advertisement about the quality of the food. Thus, from the point of view of preventing sanitary harm caused by the food, Article 11 of the Food Sanitation Act and Article 6 (1) 2 of the Enforcement Rule of the same Act regulate the indication and advertisement of food.

[4] The case holding that the advertisement of health-supporting foods posted in daily newspapers, etc. is an exaggerated advertisement on the ground that there is a high possibility that they can be perceived as having a special efficacy in recovering only the secret.

[1] Articles 12(1), 13(1), and 75 of the Constitution / [2] Articles 11 and 77 subparag. 1 of the Food Sanitation Act, Article 6(1) of the Enforcement Rule of the Food Sanitation Act, Articles 12(1), 13(1), and 75 of the Constitution / [3] Articles 2 subparag. 1 and 11(1) of the Food Sanitation Act, Article 6(1)2 of the Enforcement Rule of the Food Sanitation Act / [4] Article 11(1) and (2) of the Food Sanitation Act, Article 6(1)2, 6, and 9 of the Enforcement Rule of the Food Sanitation Act

[1] Constitutional Court en banc Order 94Hun-Ma213 delivered on February 29, 1996 (Hun-Ma14, 226)/ [3] Supreme Court Decision 97Do2925 delivered on February 13, 1998 (Gong1998Sang, 830 delivered on June 14, 2002) 201Do4633 delivered on June 14, 2002 (Gong2002Ha, 1734)

Defendant 1 and three others

Defendants

Attorney Lee Han-hoon

Seoul District Court Decision 2001No11274 delivered on May 29, 2002

All appeals are dismissed.

We examine the grounds of appeal.

1. As to the assertion on violation of the principle of no punishment without law

Since it is practically impossible to provide for all laws and regulations related to criminal punishment without exception due to the complex and diversification of social phenomenon, the limit of professional and technical ability of the National Assembly and the limit of professional and technological ability to adapt to time, it is not only impossible in fact to provide for all laws and regulations related to criminal punishment by law within a formal meaning without exception, and it is not appropriate to do so, in particular, if there are unavoidable circumstances in which it is necessary in advance or it is impossible to provide for it in advance by law, the delegation legislation is allowed under the premise that the act subject to punishment is clearly defined in terms of the constituent elements, and in terms of punishment, the kind, limit and width of punishment is clearly defined, and such delegation legislation is not contrary to the principle of no punishment without law (see Constitutional Court Order 94HunMa213 delivered on February 29, 19

Article 11(1) of the Food Sanitation Act provides that "no false label or exaggerated advertisement shall be made with respect to the name, manufacturing method, and quality of food, etc., and no label or advertisement shall be made for packages, and with respect to the labelling of food and food additives, no label or advertisement which may lead to confusion with medicine shall be made. This provision shall also apply to the nutritional value and ingredients of food and food additives." Article 11(2) provides that "the scope of false label, exaggerated advertisement, and package under the provisions of paragraph (1) shall be prescribed by Ordinance of the Ministry of Health and Welfare." Accordingly, Article 77(1) of the Food Sanitation Act provides that "the scope of false label, exaggerated advertisement, etc. under the provisions of each subparagraph of Article 6(1) of the Enforcement Rule of the same Act provides that "the scope of advertisements, etc. under the provisions of Article 11(1) of the Food Sanitation Act shall be punished by persons who violate the provisions of Article 11(2) of the same Act, and that delegation of the above scope and other necessary matters to the Enforcement Rule of the Food Sanitation Act shall not be specifically defined in effect.

Therefore, the ground of appeal pointing out any error in the judgment of the court below is without merit.

In addition, the argument that Article 6 (1) 6 of the Enforcement Rule of the same Act, which regards advertisements using experience machines, etc. as false and exaggerated advertisements, is illegal as it goes beyond the contents scheduled by superior laws, is also an independent opinion and cannot be accepted.

2. As to the assertion of mistake of facts and misapprehension of legal principles

Even if general food has the efficacy of treating diseases, insofar as the product is recognized as food under the Food Sanitation Act, and is not recognized as a medicine, the food subject to the regulation of the Food Sanitation Act is excluded from the medicine from the beginning pursuant to Article 2 subparagraph 1 of the same Act. Thus, if an expression that may lead to confusion with the medicine is used in labeling or advertising the food, it would go beyond the scope as an indication or advertisement concerning the food, thereby causing danger and harm to the consumer's sanitation. Thus, Article 11 of the Food Sanitation Act, Article 6 (1) 2 of the Enforcement Rule of the same Act, which regulates the indication and advertisement of food from the point of view of preventing sanitary harm caused by the food, are violated (see Supreme Court Decision 201Do4633, Jun. 14, 2002).

According to the reasoning of the judgment below, the court below acknowledged the facts as stated in the judgment of the court below as to the facts that the defendants conspired to publish advertisements on daily newspapers, etc. and the contents of the advertisements posted by the defendants, and acknowledged the facts as stated in the judgment of the court below. The advertisements of this case, which the defendants published, are highly likely to have a special efficacy in recovering only the secret food, such as gos, etc., and therefore, they constitute an exaggerated advertisement under Article 6 (1) 2, 6, and 9 of the Enforcement Rule of the Food Sanitation Act, and reversed the judgment of the court of first instance which acquitted the defendants, and convicted the defendants of all of the facts charged against the defendants. In light of the above legal principles and records, the above fact-finding and judgment of the court below are justified, and there is no error of law by misunderstanding facts against the rules of evidence, or by misunderstanding the legal principles as to the concurrent or collective advertisements under Article 11 (1) of the Food Sanitation Act and Article 6 (1) 2 of the Enforcement Rule of the same Act.

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jin-hun (Presiding Justice)