In a case where the Defendant, a door-to-door seller, was prosecuted for violation of the Act on Door-to-Door Sales, Etc. by imposing an obligation on door-to-door seller under Article 11(1)3 of the same Act, the case holding that the court below erred in the misapprehension of legal principles, etc., which found him guilty without sufficiently deliberating on such circumstances, in order to constitute an act of imposing an obligation under Article 11(1)3 of the same Act.

Article 11(1)3 and Article 55 subparag. 2 of the Door-to-Door Sales, etc. Act (wholly amended by Act No. 11324, Feb. 17, 2012)

Defendant

Defendant

Law Firm State Won, Attorneys Dog-man et al.

Seoul Central District Court Decision 2010No3165 Decided October 15, 2010

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

The grounds of appeal are examined.

1. As to the ground of appeal on the act of soliciting consumers

According to the reasoning of the judgment below, the court below determined that the defendant knew false or exaggerated facts or enticed or traded consumers by using deceptive methods on the grounds of the circumstances in its decision that the court of first instance duly adopted evidence, etc.

Examining the relevant statutory provisions and the evidence duly adopted by the first instance court, the lower court’s aforementioned determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors of misapprehending the legal doctrine by either misapprehending facts beyond the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by erroneously interpreting the relevant provisions, thereby violating the principle of no punishment without the law

2. As to the ground of appeal on the charge of imposing an obligation

According to the court below's adopted evidence, the court below found that the defendant, who operates a door-to-door sales business, solicits the non-indicted person who is the cause of door-to-door sales to purchase and use goods, raises the director of the division in charge at the time of raising a certain sales performance, leading him to self-purchase, and, in light of these circumstances, the defendant knew of the purchase by the non-indicted person, etc., and allowed him to purchase the goods, etc., on condition that he actually forced the non-indicted person, etc. to purchase the goods, or maintenance of the condition to become a door-to-door sales member or qualification as a door-to-door sales member, and found the defendant guilty of this part of the charges of imposing a duty prohibited under Article 11 (1) 3 of the Door-to-Door Sales Act (hereinafter "Door Sales Act").

However, it is difficult to accept the above measures of the court below for the following reasons.

Article 11(1)3 of the Door-to-Door Sales Act prohibits a door-to-door seller to become a door-to-door seller regardless of its name and form, or a door-to-door seller to collect expenses or other money or goods exceeding the level prescribed by the Presidential Decree, or to maintain the conditions to become a door-to-door salesman or the qualifications of a door-to-door salesman, or to purchase goods, etc., and imposes obligations on the door-to-door seller. Thus, in order to fall under the prohibited act, the door-to-door seller should be subject to the obligation as a condition

Therefore, the lower court should have determined that the Defendant imposed an obligation on the Nonindicted Party, etc. to purchase goods on the condition that the Nonindicted Party, etc. would become a door-to-door seller or a condition to maintain the conditions for becoming a door-to-door seller or the qualifications of a door-to-door salesman under Article 11(1)3 of the Door-to-Door Sales Act, on the sole basis of the fact that the Defendant had the Nonindicted Party, etc. purchase goods with a certain sales performance on the part of the Nonindicted Party, etc., and that he would be guaranteed a certain amount of income, rather than having deliberated on whether the Defendant had the Nonindicted Party, etc. purchase goods on the condition that he would become a door-to-door seller rather than a condition for the promotion of the quality, or on the condition that the Defendant would become a door-to-door seller, etc., and then imposed an obligation prohibited by the Door-to-Door Sales Act.

Nevertheless, without sufficiently examining these circumstances, the lower court affirmed the first instance judgment convicting the Defendant of this part of the charges on the sole basis of its stated reasoning. Therefore, the lower court erred by misapprehending the legal doctrine on the act of imposing obligations prohibited under Article 11(1)3 of the Door-to-Door Sales Act, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

3. Conclusion

Therefore, among the judgment below, the violation of the Door-to-Door Sales Act by the act of imposing duties should be reversed, and the court below rendered a single sentence by deeming this part to be a concurrent crime under the former part of Article 37 of the Criminal Act, and thus, all of the judgment below is reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent

Justices Jeon Soo-ahn (Presiding Justice)