2015No157 A. Violation of the Food Sanitation Act

(b) Violation of the Act on Special Measures for the Control of Public Health Crimes (illegal food systems);

(1) Violation of the Authorized Crime Name Food Sanitation Act)

1. A;

2. B

3. C

4. Daehan:

Defendants and Prosecutor

An online shall be prosecuted, suspended, or hearts (public trial).

Attorney E (for the defendant)

Daegu District Court Decision 2014Gohap502 Decided February 13, 2015

August 25, 2016

All appeals by the Defendants and the Prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Defendant

1) misunderstanding of facts and misapprehension of legal principles

A) On May 9, 2014, the lower court determined that Defendant A, C, and B (hereinafter referred to as “Defendant A, etc.”) manufactured satise satise satise satise satise satise satise satise satise satise satise satise satise satise sate satise satise satise sate sate sate sate sate sate sate sate sate sate sate sate sate sate sate sate satums at the tank of Defendant D (hereinafter referred to as “Defendant D”). However, on May 9, 2014, the lower court erred by misapprehending that Defendant D’s satise satise satise satume sat.

B) Although the prosecutor indicted each of the crimes described in the list of crimes committed in the facts charged as substantive concurrent crimes, the lower court convicted him of using an industrial sulfur on May 9, 201, which was not specified as the date of the crime, based on the comprehensive single crime, and thereby violated the principle of no accusation. Therefore, the lower court erred by misapprehending the legal doctrine.

2) Unreasonable sentencing

Even if the facts charged are found guilty, the sentence imposed by the lower court on the Defendants (one year and six months of imprisonment for each of the Defendants, two years of suspended sentence, one year of suspended sentence, two years of suspended sentence, and ten million won of fine) is too unreasonable.

(b) Prosecutors;

(1) misunderstanding of facts

The lower court determined that the Defendants were not guilty of all of the charges of violating the Food Sanitation Act, excluding the Defendants’ crimes committed on May 9, 2014, and of violating the Act on Special Measures for the Control of Public Health Crimes.

그러나 ① J는 적어도 2012년경부터 피고인 D에 공업용 황산을 공급하였다고 진술하였고, 그가 수사기관에서 밝힌 황산 공급량도 신빙성이 있는 점, ② 관련 업체를 운영하는 L는 피고인 C로부터 피고인 D에서 황산을 사용하여 맛기름을 제조한다는 말을 직접 들었다고 진술한 점, ③ 원심은 피고인 D이 2014년 공급한 맛기름의 색깔이 옅었다는 것을 무죄의 근거로 들었으나, 피고인들이 종래 옥수수유를 황산으로 태운 다음 여기다 참깨박추출유를 더해 맛기름을 제조하다가 2013년 이후부터 오로지 황산만 이용하여 맛기름을 제조하려다 보니 진한 색깔을 내지 못한 것으로 보이는 점 등을 종합하여 보면, 위 공소사실을 모두 유죄로 인정할 수 있다 할 것이니, 원심판결에는 사실을 오인하여 판결에 영향을 미친 잘못이 있다.

2) Unreasonable sentencing

The sentence against the Defendants of the lower court is too uneasible and unreasonable.

2. Determination

A. Judgment on the misunderstanding of facts and misapprehension of legal principles by the Defendants

1) Comprehensively taking account of the following circumstances acknowledged by the lower court and the evidence duly admitted and examined by the trial court regarding the assertion of mistake of facts, the fact that Defendant A, etc., at least on May 9, 2014 on the day on which the police was controlled by the police, added an industrial sulfur to the spawn oil in the spawnium and made a satisfying sat, using it, can be acknowledged without reasonable doubt. Accordingly, the Defendants’ assertion on this part cannot be accepted.

(A) Mosiums are roasting food additives, such as strings, spawns, etc., which have a sense of spawn or a sense of spawn, and which fall under the mawn milk in the code of food.1)

B) The method of manufacturing the chrode of the spathm or the color spathm oil is mainly used by adding the spathn oil, bean oil (hereinafter referred to as the “spathn oil”) to other food spathn oil (hereinafter referred to as the “all spathn oil”), other than by mixing the spathr oil (hereinafter referred to as the “spathn oil collected from spathr oil”) with the spathr oil in the spathn oil, etc., and the method of making the spathn oil into the spathn oil when the spathn oil is loaded into sulfur or when the first spathn oil is extracted.

C) First, on May 9, 2014, the Defendants were examined as to whether they manufactured a satisfying oil using the satisfying oil at the time of the police search and seizure (hereinafter “control on May 9, 2014”). Defendant D was supplied with satfying oil for the manufacture of the satisfying oil from the mouth industry, S Co., Ltd. (hereinafter “AG”). The manufacturers were investigated into the violation of the Food Sanitation Act around 2013, and were not provided with satisfying oil from June 7, 2013. The satfying oil being kept by Defendant D was approximately KRW 25 tons, and all of them were satfying upon the lapse of a half of the month. The Defendants did not use the satisfying oil for the production of the satisfying oil.

D) Next, on May 9, 2014, we examine whether the Defendants added spawn oil to the spawn oil in the spawn oil to the spawn oil and manufactured the spawn oil.

Although Defendant D was supplied with 19 tons of raw milk on October 29, 2013, and 21 tons of raw milk on April 23, 2014, Defendant D does not seem to have manufactured satisfying oil using raw milk in the face room at the time of crackdown on May 9, 2014, in light of the following circumstances recognized by the evidence.

① On May 9, 2014, Defendant A, an actual operator of Defendant D, made a statement at an investigative agency, on the same day as the one that reported the process of manufacturing satisfying, satching, and satisfying, and whether it is actually produced and sold.” Defendant D’s management director, stated, “When Defendant C 3 satfys about 8-9 tons of satisfying and transfers it to the low price.” Defendant A’s wife, who was in charge of Defendant D’s accounting, did not deliver the satisfying, and Defendant D’s satfying and selling the satisfying to the low price.” If Defendant A’s wife, who was in charge of Defendant D’s accounting, did not supply the satch milk to the customer on the day of satisfying, and Defendant D’s satisfying or selling the satisfying.”

② In particular, Defendant C, who is in charge of refining in Defendant D, stated, at the first investigation conducted by the police, that “the scambling oil, the scambling oil, the scam oil, and the scambling oil are manufactured with no string oil, and the scambling oil was included in the first step tank,” and did not mention the scambling oil.

③ On March 5, 2014, Defendant D reported the manufacture of food (food additives) items to the Youngcheon City Mayor, 50% of total oil, 49% of total oil, and 1% of total fest fest 1,000, and reported that Defendant D made use of 50% of total oil, 46.95% of total oil, 3% of total fest fest 05% of total oil, and 0.05% of total fest fest 0.3% of total food sanitation enforcement rules. Article 45(1) of the Food Sanitation Act provides that Defendant D made a report on the manufacture of food items to the Office of Administration, including those prior to the commencement of the production of products or within seven days after the commencement of the production of products, and it does not seem that Defendant D made a report on the manufacture of food items using Article 501 of the Food Sanitation Act at the time of the production of raw milk fest 94.

E) In full view of the following circumstances admitted by the foregoing evidence, it can be sufficiently recognized that Defendant A, etc. added an industrial sulfur to the mash oil at the time of crackdown on May 9, 2014 in order to manufacture the mash oil.

① While the oil that Defendant D supplied in the Japanese glass Co., Ltd. is a fluort color, the oil seized in the first step tank of Defendant D’s static on the control date of the instant case appears to have a string color if it is properly mixed with other food oil, unlike its original color, the oil seized in the first step tank of Defendant D would have a string color or black color. Therefore, the oil seized in the first step tank of the instant case cannot be deemed to have been added to the string oil or processed.

② As a result of an analysis of ingredients of maize oil confiscated in Defendant D, sulfur ion was not detected in the mastium oil supplied from Japanese oxide. Since then, sulfur ion was detected in the first stage tank 1.91 pm from the static oil which began to be processed, and 48.83 p p.m from the static oil generated in the process of refining, a large quantity of 1.91 p.m. ion was detected in the processed products. Since sulfur emitting a large quantity of 5 p.m. in the process after mathium, which were not existing in the mathium oil, were artificially detected in the process, the reason is not clearly explained except for those in which sulfur (or sulfur din acid is included) is artificially injected. The method is as seen earlier.

③ Defendant A has been sentenced to a suspended sentence of two years for a year, on November 15, 200, to imprisonment with prison labor for one year, on the grounds that Defendant A processed by adding 3 liters, which is a chemical substance of 5,040 liter, to 3 liter and 1840,000 won in total, of 3.80 retail prices of 3.80 liter for giving and receiving foods.

④ Although Defendant A purchased an industrial sulfur from J (F), the Defendants did not properly disclose the place of use. While recognizing that the Defendants purchased and used an industrial sulfur in KRW 10,00 per 5 liter of J, the Defendants are merely using a tank sulfur to prevent the crypus from using it. However, Defendant D merely stated that it was not necessary to prevent the crypusus from using a crypusus in the process of giving and receiving crypium, even if the crypium was created in the process of refining crypium oil, it was not necessary to prevent the crypususus from using the crypusususic acid in the process of refining crypium which was asserted by the Defendants in the related industries.

⑤ At the time of crackdown on May 9, 2014, Defendants asserted that: (a) there was a mixture of spawn oil and spawn oil in the first stage tank of Defendant D; (b) thereby, sulfur ion was detected. However, as seen earlier, Defendant D’s spawn oil cannot be deemed to have been manufactured using spawn oil; (c) the spawn oil submitted by the investigative agency on May 10, 2014, and the spawn oil (0.67pm and 0.21pm) were detected in a small amount of sulfur spawn oil (0.67p and 0.21 pm) were found in a mixture of spawn oil in the first stage tank, even if there was a mixture of spawn oil in the spawn oil, and thus, it cannot be accepted that the spawn acid was high as above.

(6) The Defendants asserted that tap water and salt were used in the process of refining the sprink oil by mixing the sprink oil with the sprink oil in the first stage tank and that the sprink oil was high due to yellow ionion contained in tap water. However, as seen earlier, as seen earlier, Defendant A, etc. cannot be deemed to have manufactured the sprink oil by using sprink oil, and Defendant A and C, as of May 9, 2014, were sent to the police officers dispatched to the site at the first stage tank (or the sprink oil and sprink oil), and it was clearly stated that the sprink oil should be added to water and salt from the second or third tank, and Defendant C still detected the sprink oil in the first stage tank to the first stage tank and did not accept the Defendants’ assertion that the sprink oil should not be mixed with salt from the second stage tank.

7) The Defendants asserted that the sulfur 1.91 pm scam was detected from static-level tank 1 to static-level tank, and that if it was found that scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scres

2) As to the assertion of misapprehension of legal principles, even if the court recognizes the criminal facts charged as substantive concurrent crimes, and treats them as a blanket crime with different legal evaluation only on the number of crimes, this does not adversely affect the defense of the defendant, and thus, the court may punish the defendant as a single comprehensive crime without any changes in the indictment (see, e.g., Supreme Court Decision 87Do546, Jul. 21, 1987). In addition, in a case where there is no likelihood that the defendant’s exercise of his/her right to defense may not be seriously disadvantaged, the court does not violate the principle of no objection even if the basic facts of the facts charged are acknowledged differently without going through the changes in the indictment to the same extent (see, e.g., Supreme Court Decision 2006Do1667, Jun.

In light of the facts charged in this case’s violation of the Food Sanitation Act and the Act on Special Measures for the Control of Public Health Crimes, the Defendants’ violation of the Act on the Control of Public Health Crimes are related to each other’s comprehensive crimes. Since the Defendants have not used an industrial sulfur from the investigation stage to May 9, 2014, the date of control, the Defendants’ conviction, the Defendants’ assertion on this part of the Defendants’ assertion cannot be accepted. Accordingly, the Defendants purchased an industrial sulfur from J. As seen earlier, the Defendants were unable to be supplied with an extraction of pedry oil, which is the raw material of satis from June 7, 2013 to June 9, 2014. Considering that there was no suspicion that they manufactured and sold satisfying by using the satfy ingredients until May 9, 2014, there is no strong doubt that they manufactured and sold the satisfying, and that the remaining Defendants were guilty of using the satisfying ingredients other than the sat.

However, in full view of the following circumstances admitted by the above evidence, it is difficult to view that the evidence submitted by the prosecutor alone was sufficiently proven to the extent that there is no reasonable doubt that Defendant A et al. used an industrial sulfur in the manufacturing process of all massages during the entire period specified in the facts charged.

1) With respect to the timing and volume of supply of sulfur in industrial use, J stated in an investigative agency that the first time from 2004 to February 4, 201, that the Defendant sold the sulfur in industrial use, and reversed the statement that the supply was made from 2011. The court below stated in the court below that the supply time was 2012, and that the supply time was 10 liters once every three to four months at the first time, and that the supply amount was 45 liters at the first time, and that the annual average sales volume was 35 liters at the court below’s court. The sales account book can be confirmed only by the total sales volume (35 liters) from July 22, 2013 to February 4, 2014, and that the previous account book did not exist. As such, it cannot be seen that the Defendants purchased the accurate sale volume from J as well as all the objective materials that could have been known in the facts charged.

2) L operating S in the investigative agency and the court of the court below stated that the Defendants used an industrial sulfur in the manufacture of part of the massage oil, and used an industrial sulfur in full scale from June 7, 2013 to that of the supply of the shoulder extraction oil, and around that time, Defendant C made a statement that Defendant C would use the yellow acid in Defendant D to manufacture the massage oil. However, the part of the above statement made by Defendant C in the above statement is inadmissible as evidence, and L enters the factory of Defendant D at the court of the court of the court below or stated that there was no direct production process of the massage oil. Thus, the remainder of the statement seems to be merely the abstract side.

3) From June to June 7, 2013, the Defendants were supplied with string oil from the above mouth industry, S, etc., and thus, the Defendants were able to use the said oil before that time, and then manufacture the string oil. There was an examination of whether the Defendants used string oil made by an unsanitary method under the premise that the Defendants manufactured the string oil by the string extraction until March 11, 2013.9) As such, the Defendants were able to manufacture the string oil by the string extraction, and even if the Defendants were to have manufactured some string oil by adding the yellow acid, the said quantity cannot be specified at all.

4) The prosecutor asserts to the effect that the Defendants were no longer supplied with the shoulder extraction oil after June 7, 2013, and that Defendant D had no choice but to manufacture the shoulder oil in a yellow acid supplied by J. However, as seen earlier, Defendant D remains a certain quantity of shoulder extraction oil, but it cannot be found at all when and at any time whether the shoulder oil manufactured was supplied to any business (the fact is specified as the date of sale and the place of sale). There is no objective and reliable evidence to deem that the Defendants had no choice but to use an industrial yellow acid if the Defendants are unable to be supplied with the shoulder extraction oil (the fact is specified as the date of sale and the place of sale).

5) The reason why an industrial sulfur is added to the process of manufacturing the satchum is to put in color colors similar to the satis. At the court below’s court, K, the representative of P, stated that the satise color color of the Defendant D supplied by the Defendant D was not so serious that the satise is used in mixing with other products because the satise color of the other companies. This is interpreted to the effect that all the satums manufactured and sold by the Defendants do not have been manufactured and supplied by adding an industrial sulfur to the satise oil. From July 2013 to March 2014, 2014, it is deemed that D’s statement or satisfying supply of the satum without a color light is consistent with the purpose of mixing and selling the satum.

6) N, the representative director of Q Q, also stated at the investigative agency that the Defendant D was supplied with the color satisfying. 10)

7) The facts charged reveal that the Defendants used a yellow acid to manufacture and sell the massage oil by June 30, 2014. However, even after the control of May 9, 2014, there is doubt as to whether the Defendants still sold the massage oil that was manufactured by using the industrial yellow acid or by using the yellow acid. As seen earlier, on May 28, 2014, the Defendants reported that they added the massage oil to the Youngcheon City Mayor and made the massage oil. Separate from the instant case, an investigation agency conducted an investigation as to whether the Defendant’s massage was included in the face oil under the premise that the Defendants manufactured the massage oil using the face oil from May 31, 2014 to May 9, 2014. Therefore, the evidence submitted by the Prosecutor alone is insufficient to find that the Defendants continued to use the yellow acid for industrial purposes after the control of May 9, 2014.

C. As to the assertion of unfair sentencing by the Defendants and the prosecutor, the crime of this case is one of the cases where the Defendants laid the mash oil from the mash oil into an industrial yellow acid, and thus, the Defendants may have a serious adverse effect on the health of consumers and disrupt the people’s trust in food. Thus, the crime of this case does not constitute an exceptional crime.

Meanwhile, the period of the Defendants’ crime is short of time, and there is no obvious evidence to deem that the Defendants had discovered any substance harmful to the human body in light of the appearance of the Defendants manufactured and sold so far. Defendant C and B have no record of criminal punishment heavier than a fine.

In full view of the following circumstances, including these circumstances, Defendant A, etc.’s age, character and conduct, environment, motive, means and consequence of the commission of the crime, and the circumstances after the commission of the crime, the lower court’s punishment is determined to be within the appropriate range of sentence corresponding to its liability, and it does not seem that the sentence is too heavy or less severe. Accordingly, the Defendants and the Prosecutor’s assertion on this part cannot be accepted.

3. Conclusion

Therefore, the appeal filed by the Defendants and the prosecutor is all dismissed under Article 364(4) of the Criminal Procedure Act. It is so decided as per Disposition by the court below. However, since it is obvious that each of the "Food Sanitation Act" in the application of the statutes of the court below is a clerical error of the former Food Sanitation Act (amended by Act No. 12496, Mar. 18, 2014 and enforced from September 19, 2014). Thus, each of the relevant parts is corrected in accordance with Article 25(1) of the Rules on Criminal Procedure.

Equal judges of the presiding judge;

Judges fixed-term

Judge Jeon Soo-soo

(i)a mixture of flavorings, flavorings, natural extractions, bricks, etc. to maintain food, used to assign flavoring to food when cooking or processing;

institution means the institution.

(ii) 237 pages of evidence records

(iii) evidence records No. 454 pages

(iv) 28 pages, 277 of the evidence records.

5) Evidence records No. 887-889

6) Evidence No. 987 pages

7) The steam records No. 529 pages, 530 pages

(viii) 626 pages, 629 of evidence records

(ix) 127 to 132 pages of the trial records.

10) Evidence No. 447 pages

11) The maximum statutory penalty for the manufacture, etc. of harmful foods under Article 94 of the Food Sanitation Act was amended from 7 to 10 years by the amendment of 3.18.

Since the court below stated the scope of punishment against Defendant A, etc. as "not more than seven years of imprisonment", the preceding provision of the amendment at the time of the crime of this case shall apply.

I can find out that it had been made.