Defendant

Defendant

Freeboard

Attorney Wh Jeong-sik (Korean)

Suwon District Court Decision 2009 High Court Decision 2321 Decided May 14, 2010

The judgment of the court below is reversed.

The defendant shall be innocent.

1. Summary of grounds for appeal;

This case is based on the non-indicted's malicious report, and the defendant did not engage in tobacco retailer business during the period of business suspension as stated in the facts charged.

2. Summary of the facts charged in this case and applicable provisions of Acts;

The summary of the facts charged of this case is that the defendant, who was designated as a tobacco retailer from the competent authority, was ordered a disposition of business suspension from April 13, 2009 to May 27, 2009 on the ground that he sold tobacco to juveniles, but the defendant was ordered a disposition of business suspension from May 24, 2009. However, the defendant was indicted for a violation of Article 27-3 subparagraph 1 of the Tobacco Business Act on the ground that he was indicted by the defendant as to the above facts charged that he was "a person who sells tobacco to consumers without being designated as a retailer in violation of the provisions of Article 12 (2) of the Tobacco Business Act" on the ground that he was "a person who sells tobacco to consumers without being designated as a retailer in violation of Article 12 (2) of the Tobacco Business Act."

3. Determination

(a) The relevant provisions of the Tobacco Business Act shall be as follows:

Article 12 (Sale of Tobacco)

(2) No person other than a retailer shall sell tobacco to consumers.

Article 16 (Designation of Retailers)

(1) A person who intends to operate a tobacco retail business (referring to a business that sells directly to consumers) shall obtain designation as a retailer from the head of a Si/Gun/Gu having jurisdiction over the location of the business

(2) No person who falls under any of the following subparagraphs shall be designated as a retailer:

5. A person for whom 2 years have not elapsed from the date on which the designation has been revoked under Article 17 (1); and

(3) The head of a Si/Gun/Gu may not designate a retailer for a person who intends to sell tobacco in a place deemed inappropriate to engage in tobacco sales business, such as a place where juveniles (referring to juveniles provided for in subparagraph 1 of Article 2 of the Juvenile Protection Act; hereinafter the same shall apply) can easily access tobacco.

(4) Standards, procedures and other matters necessary for the designation of retailers shall be prescribed by Ordinance of the Ministry of Strategy and Finance.

Article 17 (Cancellation, etc. of Designation of Retailer)

(1) Where a retailer falls under any of the following subparagraphs, the head of a Si/Gun/Gu shall revoke his/her designation:

4. Where it continues its business during the period of business suspension;

(2) Where a retailer falls under any of the following subparagraphs, the head of a Si/Gun/Gu may order him/her to suspend his/her business for a specified period not exceeding one year:

6. Where he sells tobacco to juveniles; and

(3) Necessary matters concerning the guidelines and procedures for disposition of suspension of business referred to in paragraph (2) shall be prescribed by Ordinance of the Ministry of Strategy and Finance.

Article 27-3 (Penalty Provisions)

Any person who falls under any of the following subparagraphs shall be punished by a fine not exceeding five million won:

1. A person who has sold tobacco to consumers without obtaining a designation of retailer in contravention of the provisions of Article 12 (2);

B. Determination

ex officio, the interpretation of the health class, penal law, and penal law should be strict, and the interpretation of the meaning of the explicit provision in the direction unfavorable to the defendant is not permitted as it is contrary to the principle of no crime without the law. This principle of interpretation of the law also applies likewise to the interpretation of the administrative law in a case where the contents of the administrative law subject to the penal law are contents (see Supreme Court Decisions 2006Do4582, Jun. 29, 2007; 90Do1516, Nov. 27, 1990, etc.).

Subparagraph 1 of Article 27-3 of the Tobacco Business Act provides that a person who sells tobacco to consumers without being designated as a retailer in violation of Article 12 (2) shall be punished by a fine not exceeding five million won. In addition, a disposition to designate a tobacco retailer, a disposition to suspend tobacco retail business, or a disposition to cancel the designation of a tobacco retailer shall differ from the requirements and effects thereof, and the detailed criteria and procedures are different from each other [Article 16 (4), Article 17 (3) of the Tobacco Business Act, Articles 7, 7-2, 7-3, and 11 of the Enforcement Rule of the Tobacco Business Act, and Article 17 (1) 4 of the Tobacco Business Act provides that a person whose designation as a tobacco retailer is subject to a disposition to suspend the business after being designated as a tobacco retailer shall be punished by imprisonment with prison labor for not more than 5 million won (limited to cases where a person is not designated as a retailer) and a person who is subject to a disposition to suspend the business of not more than 3 years, while interpreting Article 17 (2) of the Tobacco Business Act or a fine not exceeding 3.

In light of the above legal principles, even if the defendant, even though he was subject to a disposition of business suspension as to tobacco retail business as stated in the facts charged, sold tobacco to a male on May 24, 2009 and operated tobacco retailer's business in the name-free male around 11:00, while the business suspension period was suspended, it shall not be punished pursuant to Article 27-3 (1) of the Tobacco Business Act by deeming that the person who sold tobacco to consumers during the period of business suspension after being designated as a tobacco retailer, as seen earlier, is "a person who sells tobacco to consumers without being designated as a retailer".

Therefore, even if the facts charged against the defendant constitute a crime, the court below found the defendant guilty, which erred by misapprehending the legal principles as to the violation of the Tobacco Business Act, which affected the conclusion of the judgment.

4. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364(2) and (6) of the Criminal Procedure Act, since the above grounds for ex officio reversal exist, and it is again decided as follows.

Since the facts charged against the defendant in this case constitute a crime as stated in Paragraph 3 above, the defendant is acquitted under the former part of Article 325 of the Criminal Procedure Act.

Judges Kim Jong-ho (Presiding Judge)

1) In the case of small-scale types of business prescribed by the Enforcement Rule of the Installation and Utilization of Sports Facilities Act, even if the sports facility business is operated after having received an order to close down the business, an administrative fine not exceeding one million won shall be imposed pursuant to Article 40(1)6 of the said Act, but shall be excluded from the subject of criminal punishment.

2) In addition, Article 94 Subparag. 3 of the Food Sanitation Act provides that a person who runs a business without obtaining permission for entertainment bar business, etc. shall be punished by imprisonment for not more than seven years or by a fine not exceeding 100 million won, whereas Article 95 Subparag. 5 of the same Act provides that a person who continues to run a business in violation of an order to suspend business operations shall be punished by imprisonment for not more than five years or by a fine not exceeding 5

3) Article 34(3)3 of the Music Industry Promotion Act, Article 20(1)2 of the Public Health Control Act, Article 45 Subparag. 9 of the Game Industry Promotion Act, and Article 96 Subparag. 7 of the Framework Act on the Construction Industry, etc.

(4) Meanwhile, Supreme Court Decision 95Do571 Decided June 30, 1995 ruled that "the act of selling alcoholic beverages during the period in which a person who obtained a license for alcoholic beverage sales business was subject to the disposition of suspension of alcoholic beverage sales business constitutes a non-licensed alcoholic beverage sales under Article 8 (1) of the Punishment of Tax Evaders Act", but the above decision does not coincide with the above case, nor does the above Supreme Court decision apply to this case in light of the legislative intent of the Punishment of Tax Evaders Act.