Whether the maintenance room extracted from heat of cattle or pigs constitutes an intermediate product under Article 9 subparag. 30 of the former Enforcement Decree of the Food Sanitation Act (Presidential Decree No. 11409 of Apr. 13, 1984).

When integrating the provisions of Articles 2 subparag. 1, 22, and 23 of the former Food Sanitation Act (Act No. 3334 of Dec. 31, 1980), and Article 9 subparag. 30 of the Enforcement Decree of the same Act (Presidential Decree No. 11409 of Apr. 13, 1984), if a product is manufactured such as shocking, etc. after being supplied to another food company and being dried up and added therefrom, it constitutes an intermediate product under the above Enforcement Decree, not a finished product, but a finished product is not subject to the Environmental Conservation Act, or the manufacturing facilities standards, specifications, components, etc. for maintained products under the related regulations such as the Phyto. 13 of the Phyto. 1984 Act are not prescribed.

Article 2, Article 22, Article 23 of the former Food Sanitation Act, Article 9 of the Enforcement Decree of the same Act

Defendant 11 and 11 others

Defendants and Prosecutor

Seoul District Court (85 Gohap645, 741) and Incheon District Court (86 Gohap603, 87 Gohap54, 85)

The judgment of the court below against the defendant 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10 shall be reversed.

Defendant 1, 2, and 3 shall be punished by imprisonment for three years, by imprisonment for four years, by imprisonment for six years and six months, by imprisonment for two years and six by six months, by imprisonment for two years and by a fine of 65,00,000, respectively.

When Defendant 5 fails to pay the above fine, the amount of KRW 70,000 shall be confined in a workhouse for the period converted into one day.

Of the detention days prior to the sentence of the lower judgment, 170 days for Defendant 5, 1, 2, 3, 4, 6, and 7, 95 days for each of them, and 75 days for Defendant 8 shall be included in the said imprisonment, respectively.

However, for the defendant 1, 2, 3, and 5 from the date of the final judgment of this case, the execution of each of the above imprisonment for 4 years, and for the defendant 4, 6, 7, 8, and 9, shall be suspended for 3 years.

Each fine imposed on Defendant 1, 2, 3, 4, 6, 7, 8, and 9 and each sentence imposed on Defendant 10 shall be suspended.

All of the appeals filed by the prosecutor against the Defendants, such as Defendant 11 and 12, are dismissed.

1. Grounds for appeal;

A. Grounds for appeal by the public prosecutor (as to the defendant 1 to 9)

The gist of the prosecutor's appeal is that the crime of this case by the above defendants is manufactured or sold without permission, and it is a crime detrimental to the public health and sanitation, and even if there are many quantities, the court below's decision of suspension of execution is unfair because the sentence is too uneasible.

B. Grounds for appeal by the Defendants

Summary of the grounds for appeal common to the Defendants

The first point is that the court below erred in interpreting and applying the food under the Food Sanitation Act by determining that it constitutes food under the Food Sanitation Act, even though it is not a food under the Food Sanitation Act, which the defendants manufactured or acquired for the purpose of sale or sale, or is not a food under the Food Sanitation Act.

This paper refers to the following points.

(1) The previous Dozers or Dozers extracted only from cattle or pigs, without having gone through the process of refining, and the people can not immediately use them for cooking food due to high acids and bad malodors.

(2) Using the naphtha extracted from crude oil, which is the raw material of petroleum, made ice acid, made spirits in ice ice cryp, produced salt from salted salt, and made food possible after undergoing the process of refining such as ice cryp, cryp, rubber cryp, sloping, sloping, seizure, etc. as it is not necessary to conduct food processing business in the process of manufacturing, and then maintaining food used as raw material of maroin or shock cryping. Thus, it cannot be said that the pre-stage cryp, crypine cryp, etc.

(3) The imported well-known places have fixed well-known and ordinary well-known places, but it is imported as food which is treated as food and which does not require permission, and is used in the manufacture of food such as marin, etc. through the process of refining in domestic food manufacturing enterprises.

(4) The so-called so-called "refilled land", where money is extracted, is treated as industrial wastes under the Environmental Conservation Act, and this is merely a refilled product.

(5) It is clear that our legislation does not deal with food, in light of the fact that there is no provision regarding the manufacturing, processing, facility standards, specification, quality, etc. of related Acts and subordinate statutes, such as the Enforcement Rule of the Food Sanitation Act, and it is clear that money prices are not treated as food.

Secondly, the Defendants did not request that the food manufacturing company of large enterprises, such as shot River and shot River, had been supplied continuously for a period of three years, and did not request that the Defendants be permitted to engage in food processing business. The instant case is that people cannot drink as alleged earlier, and that there was no limit in the related agencies to obtain permission. Thus, there was no perception that the Defendants did not recognize the illegality of the manufacture and sale of shotland or that they should obtain food processing business permission.

Third, the sentencing of the court below is too unfair in light of the fact that the defendants were caused to commit this case as the site of the law, and the money was supplied only to a large food manufacturing company equipped with the precision process, and there was no direct damage since it was not sold to the general public.

2. Grounds for appeal inherent to each of the Defendants

Defendant 3 and 5 (Seoul Criminal Court Decision 85Gohap645, 741) : The lower court acknowledged that the same Defendants made the instant case and the instant money, but the Defendants only requested the processing to Nonindicted 1 and Nonindicted 2 other than the judgment, and the said Defendants made this case and money by Nonindicted 1 and Nonindicted 2. The lower court misunderstood the facts.

Defendant 6 and 12: The court below recognized that the defendants sold this case and the money to the food manufacturing company, although the same defendants purchased from the manufacturer and sold them to the general consumers, and determined that they were sold with the knowledge of the fact under Article 2(1) of the Act on Special Measures for the Control of Public Health Crimes, the court below erred by misapprehending the legal principles of the above Article, or by misapprehending the legal principles.

Defendant 5 (as to Defendant 5, Incheon District Court Decision 86Gohap603, 87Gohap54, and 85): The same Defendant already transferred the same maintenance of the maintenance chain, such as the wells and spats, which he had operated, to Nonindicted 3, other than the judgment, before the date of the crime, and the same Defendant was not a crime under paragraph (2) of the crime of this case, the lower court erred by misapprehending that the same Defendant committed the crime of this case.

Defendant 5 and 9 (Objection to the Judgment of the Incheon District Court): Defendant 10 Co., Ltd. (hereinafter “Defendant 10”) as indicated in the judgment of the same Defendants were located in an industrial complex and had large manufacturing facilities and did not recognize that they were permitted for food processing business, but did not recognize that they were an unauthorized manufacturer. However, the lower court erred by misapprehending that the same Defendants were aware.

2. Determination on the grounds for appeal

A. Determination as to the assertion that it is not subject to permission under the Food Sanitation Act

According to Article 2(1), Article 23(1) of the Food Sanitation Act (see Articles 21 and 22 of the current Act), a person who intends to engage in food or additives manufacturing and processing business as prescribed by the Presidential Decree, among those who intend to engage in food or additives manufacturing and processing business, shall obtain permission from the Minister of Health and Welfare, the Mayor of Seoul Special Metropolitan City, and the Mayor of Seoul Special Metropolitan City, the head of a Do, under the conditions as prescribed by the Presidential Decree. Article 9 subparag. 30 of the above Enforcement Decree (Ordinance No. 11409 of Apr. 13, 1984) of the same Act, which is a type of food processing business under Article 23 of the above Act, provides that food materials are excluded from intake. According to Article 23(1), Article 23(1) of the same Act (see Articles 21 and 22 of the same Act), a person who intends to engage in food or additives manufacturing and processing business, shall not be deemed to have been engaged in manufacturing or collecting food materials, and shall not be added to the above products.

Furthermore, the reason that the goods similar to the maintenance of the case are not treated as food does not necessarily obstruct the maintenance of the case as food. Nap or ice production is not itself food, and there is no reason to permit the manufacture of sun-dried salt because there is no process to be called a processing. As to the manufacture of sun-dried salt, it is necessary to permit the manufacturing of fish to obtain permission from the Administrator of the Fisheries Administration under Article 44(1) of the Fisheries Act and Article 45(1) of the Enforcement Decree of the same Enforcement Decree. While the maintenance of the import is against the above-mentioned practice, the maintenance of the general maintenance is also imported for the purpose of processing it as food, it is wrong, so this is not the reason that the maintenance of the case is not a food, and it does not have any influence on the manufacturing facility standards or regulations of the Food Sanitation Act, but does not have any effect on the manufacturing facility standards or regulations of the Food Sanitation Act.

B. Determination on the assertion that there was no perception of illegality

Even if the Defendants did not recognize that the instant letter is subject to permission under the Food Sanitation Act, the Defendants do not constitute justifiable grounds for believing that the Defendants were not illegal on the sole ground that the waiting company received the delivery without asking whether permission was granted or not, did not have any guidance from the administrative authorities, and the instant letter was not in a state of food. Therefore, the argument is groundless.

C. According to the evidence duly examined and adopted by the court below as to the issue of mistake of facts that Defendant 3 and 5 did not manufacture them, it is recognized that the Defendants, as the case was that the Defendants, such as Nonindicted 1 and Nonindicted 2, 2 opened a Gam Gamto on the Domcheon, supplied the Gam Dom Dom Dom Dom Dom Dom Dom Dom Dom Dom Dom Dom Dom Dom dom Dom dom dom dom dom, and paid 4,000 or 5,000 won to the above persons in return for the work,

D. Determination as to whether Defendant 6 and 12's appeal for mistake of facts or misapprehension of legal principles is discussed

The term "sale" in Article 2 (1) of the Act on Special Measures for the Control of Public Health Crimes in the ruling means the sale to which the general possessor is only the general possessor, so there is no ground to discuss it.

E. Determination as to whether Defendant 5’s appeal for mistake of facts against the crime of the Incheon District Court case is the subject of paragraph (2)

According to the evidence duly admitted by the court below, it is not reasonable to discuss the above evidence since it is sufficiently recognized that the crime of Paragraph 2 of the same Article of the Incheon District Court Decision 86Gohap603, 87Gohap54, and 85 was committed by the defendant and the testimony of the non-indicted 3 or the defendant's defense is insufficient to dismiss the above evidence.

F. Determination as to the assertion that Defendant 5 and 9 did not have a criminal intent because Defendant 10 was unaware of the fact that Defendant 5 and 9 was an unauthorized company

The evidence duly admitted by the court below (each of the above defendants, co-defendant 8, and non-indicted 4 et al.'s statements to the investigation agency) is sufficient to recognize the criminal intent of the above defendants. Therefore, the arguments are without merit.

G. Determination on each ground for appeal on unfair sentencing (except for defendant 5 with respect to the defendant 5)

With respect to the prosecutor's or the defendants' assertion of unfair sentencing, the court below's sentencing is more severe than that of the prosecutor's assertion (excluding the defendants 8, 9, and 10), since the court below's judgment on the above defendants is more severe than that of the defendant 1, 2, 3, 4, 6, 7, 8, 9, and 10, and the price of money was not sold to the general consumers, but supplied to the food company equipped with fixed facilities. The defendants committed this case's crime due to the criminal intent's site, and the defendants are in the place of bankruptcy if they were not less than a fine or they were sentenced to an excessive fine. In light of various sentencing conditions in this case, the court below's judgment on the above defendants is unfair.

However, with respect to Defendants 11 and 12, in full view of the suspended sentence or the sentence of the same Defendants as well as the above sentencing conditions, the lower court’s sentencing is not deemed to be too weak as the prosecutor’s assertion or to be too excessive as the same as the above Defendants’ assertion, and thus, it is unreasonable to discuss the unfair sentencing of the Defendants such as the prosecutor or the like.

H. Ex officio determination on Defendant 5

In this regard, the judgment of the court below cannot be maintained since the defendant joined the case of 88No2112 and 85No3502 as to the same defendant in the trial for the same defendant, and the decision of the court below is not necessary to determine whether to appeal unreasonable sentencing with respect to the defendant.

I. Conclusion

Therefore, the appeal filed by Defendant 11 and 12 and the appeal filed by the Prosecutor against Defendant 11, 11, 2, 3, 4, 6, 12, and 13 are without merit. Thus, it is dismissed pursuant to Article 364(4) of the Criminal Procedure Act, and with respect to Defendant 5, the judgment of the court below shall be reversed ex officio pursuant to Article 364(2)6 of the same Act. The appeal filed by Defendant 1, 2, 3, 4, 6, 7, 7, 8, 9, and 10 are reasonable and the judgment of the court below against the same Defendants is reversed pursuant to Article 364(6) of the same Act, and with respect to the reversed part, the judgment of the court below shall be reversed

3. Judgment of party members

A. The criminal facts and evidence relation acknowledged as a party member with respect to the reversed part (as to the defendant 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10) are the same as the time of original adjudication, and thus, they are cited in accordance with Article 369 of the Criminal Procedure Act.

(b) the application of legislation;

판시 각 소위 중 피고인들의 판시 각 유지의 제조, 판매 또는 판매목적 취득의 점은 각 보건범죄단속에관한특별조치법(법률 제3333호)제2조 제1항 제1호 , 식품위생법(법률 제3334호) 제23조 제1항 , 제22조 제1항 에, 피고인 2의 판시 공업배치법위반의 점은 공업배치법 제39조 제3호 , 제13조 제1항 에 각 해당하는바, 판시 각 보건법죄단속에관한특별조치법위반죄에 대하여는 소정형 중 유기징역형을 각 선택한 다음, 보건범죄단속에관한특별조치법 제2조 제2항 에 의하여 각 벌금을 병과하기로 하고, 판시 공업배치법 위반죄에 대하여는 소정형 중 징역형을 선택하고, 피고인 2와 5의 위 수죄는 형법 제37조 전단의 경합범이므로 형법 제38조 제1항 제2호 , 제3호 에 의하여 피고인 2에 대하여는 형이 보다 무거운 판시 보건범죄단속에관한특별조치법위반죄에 정한 형에, 5에 대하여는 법정이 무거운 판시 1986.9.4.경부터의 판매목적취득에 의한 위 특별조치반위반죄에 정한 형에 각 경합범가중을 하고, 피고인들은 각기 실형전과가 없고 이 사건 우지와 돈지를 소비자들에게 직접 판매한 것이 아니라 정제시설을 갖춘 롯데삼강, 서울식품공업 등 대기업에 마아가린 등의 중간제품으로 판매하였으며 이를 가공하여 소비자들에게 판매한 마아가린, 쇼트닝은 정제과정을 거쳤기 때문에 신체에 아무 해독도 없다는 점, 피고인들은 이 사건, 우지, 돈지를 제조, 판매, 취득함에 있어 식품위생법상의 허가가 필요없는 것으로 잘못알고 있었고 이 사건이 문제된 후 피고인 2, 5, 7은 즉시 식품가공업 허가를 받았으며 그 동안 허가없이 제조하거나 이를 판매한 점에 대해서 그 잘못을 깊이 뉘우치고 있는 등 그 범죄의 정상에 참작할 만한 사유가 있으므로 형법 제53조 , 제55조 제1항 제3호 , 제6호 에 의하여 각 작량감경을 한 다음 각 소정의 형기 및 벌금액 범위내에서 피고인 1을 징역 3년 및 벌금 6억 9천만원에, 피고인 2를 징역 3년 및 벌금 5억 7천만원에, 피고인 3을 징역 3년 및 벌금 1억 1천만원에, 피고인 4를 징역 2년 6월 및 벌금 2,400만원에, 피고인 5를 징역 2년 6월 및 벌금 6,500만원에, 피고인 6을 징역 2년 6월 및 벌금 3억 4천만원에, 피고인 7을 징역 2년 6월 및 벌금 1억 8천만원에, 피고인 8을 징역 2년 6월 및 벌금 7,000만원에, 피고인 9를 징역 2년 6월 및 벌금 800만원에, 피고인 10을 벌금 7,000만원에 각 처하고, 피고인 10을 제외한 나머지 피고인들이 위 벌금을 납입하지 아니할 때에는 형법 제70조 , 제69조 제2항 에 의하여 피고인 1에 대하여는 금 690,000원을, 피고인 2에 대하여는 금 570,000원을, 피고인 3에 대하여는 금 110,000원을 피고인 4에 대하여는 금 30,000원을 피고인 김진구에 대하여는 금 70,000원을, 피고인 6에 대하여는 금 340,000원을, 피고인 7에 대하여는 금 180,000원을, 피고인 8에 대하여는 금 70,000원을, 피고인 9에 대하여는 금 10,000을 각 1일로 환산한 기간 피고인들을 노역장에 각 유치하며, 형법 제57조 에 의하여 원심판결선고전의 구금일수 중 피고인 5에 대하여는 170일을, 피고인 1, 2, 3, 4, 6, 7에 대하여는 각 95일씩을, 피고인 8에 대하여는 75일을 위 징역형에 각 산입하되 피고인 10을 제외한 나머지 피고인들에게 위에서 본 바와 같이 그 정상에 참작할 만한 사유가 있으므로 형법 제62조 에 의하여 이 판결확정일로부터 피고인 1, 2, 3, 5에 대하여는 각 4년간, 피고인 4, 6, 7, 8, 9에 대하여는 각 3년간 위 징역형의 집행을 각 유예하고, 앞의 파기이유에서 본 바와 같은 정상을 참작하여 피고인 1, 2, 3, 4, 6, 7, 8, 9에 대한 각 벌금형과 피고인 10에 대한 위 형의 선고를 각 유예한다(피고인 5에 대하여는 같은 피고인인 당원 85노3502호 사건이 당원에 계속중인 동안에 다시 위 인천지방법원 사건의 범죄를 저지른 사정이 있어 벌금형의 선고유예 대상에서 제외하기로 한다).

It is so decided as per Disposition for the above reasons.

Judge Lee Young-young (Presiding Judge) Lee Ho-won