[1] The subject of a violation of the provisions of Articles 77 and 31 (1) of the former Food Sanitation Act, such as a business operator

[2] In a case where a manufacturer or importer of food that does not indicate the deadline for distribution voluntarily establishes and displays the deadline for distribution of the food and then expresses other distribution deadline after filing a report, whether it constitutes a "False labelling" under the former Food Sanitation Act (affirmative)

[1] In order to constitute the elements of Article 79, Article 77 subparag. 5, Article 31(1) of the former Food Sanitation Act (amended by Act No. 7374 of Jan. 27, 2005), Article 42(1) [Attachment Table 13] of the former Enforcement Rule of the Food Sanitation Act (amended by Ordinance No. 324 of Jul. 28, 2005), and Article 17-2 of the former Enforcement Decree of the Food Sanitation Act (amended by Presidential Decree No. 17971 of Apr. 22, 2003), an offender shall be a business operator who can lawfully engage in food service business after obtaining a business license, etc. under the Food Sanitation Act and shall be a business operator under Article 17-2 of the former Enforcement Decree of the Food Sanitation Act.

[2] According to Article 22(6) of the former Food Sanitation Act (amended by Act No. 7374 of Jan. 27, 2005), Articles 25 and 26(2) of the former Enforcement Rule of the Food Sanitation Act (amended by Ordinance of the Ministry of Government Administration and Home Affairs No. 324 of Jul. 28, 2005), when a food manufacturer manufactures or processes food, he/she shall voluntarily set a distribution period and submit a report on the manufacture of food. When he/she intends to extend the distribution period, he/she shall submit a report on the extension of the distribution period attached thereto. Article 16 of the same Act and Article 11 of the Enforcement Rule provide that if an importer imports food, he/she shall file an import declaration with the importation period stated on the import declaration and undergo an inspection according thereto. In full view of the purport of the above provisions, the distribution period or distribution period is determined voluntarily by the food manufacturer or importer, and furthermore, he/she appears to have been bound by the distribution period, and the importer’s purpose of labeling or inspection of food is not effective.

[1] Articles 31(1), 77 subparag. 5, and 79 of the former Food Sanitation Act (amended by Act No. 7374 of Jan. 27, 2005), Article 42(1) [Attachment 13] subparag. 2(m) of the former Enforcement Rule of the Food Sanitation Act (amended by Ordinance No. 324 of Jul. 28, 2005), Article 17-2 of the Enforcement Decree of the Food Sanitation Act / [2] Articles 11(1), 16(1), and 22(6) of the former Food Sanitation Act, Articles 11, 25, and 26(2) of the former Enforcement Rule of the Food Sanitation Act (amended by Ordinance No. 324 of Jul. 28, 2005), standards for labeling food, etc. (amended by Ordinance of the Ministry of Food and Drug Administration No. 201(f) of the Ministry of Food and Drug Administration)

[1] Supreme Court Decision 93Do436 delivered on May 25, 1993 (Gong1993Ha, 1936)

Defendant

Defendant

LLC, Kim & Lee LLC, Attorneys O taxon et al.

Seoul Central District Court Decision 2006No38 Decided June 19, 2007

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

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

Articles 79, 77 subparag. 5, and 31(1) of the former Food Sanitation Act (amended by Act No. 7374 of Jan. 27, 2005; hereinafter referred to as the “Act”), Article 42(1) [Attachment Table 13] of the former Enforcement Rule of the Food Sanitation Act (amended by Ordinance No. 324 of Jul. 28, 2005; hereinafter referred to as the “Enforcement Rule”) and Article 42(2) subparag. 2(m) of the former Enforcement Rule of the Food Sanitation Act are business operators who are legally permitted to engage in food service business after obtaining permission, etc. under the Food Sanitation Act and are prescribed in Article 17-2 of the Enforcement Decree of the Food Sanitation Act (amended by Presidential Decree No. 17971 of Apr. 22, 2003) (see Supreme Court Decision 93Do4366 of May 25, 193).

However, even after examining the evidence duly adopted and examined by the court below, there is no evidence supporting that the "(trade name omitted) fishery" actually operated by the defendant is the above business operator. Thus, the court below's determination that the employee " sold the products whose expiration date has expired due to the violation of the matters to be observed by the business operator, etc." was erroneous in the misapprehension of legal principles as to the matters to be observed by the business operator, etc. on the premise that the defendant is the business operator. The ground of appeal pointing this out

2. Regarding ground of appeal No. 2

Article 10(1) of the Act provides that the Commissioner of the Korea Food and Drug Administration may determine and publicly announce the necessary standards for the indication of food. Accordingly, Article 4 of the "Standards for Food, etc. Labeling" (amended by Presidential Decree No. 2005-12 of Mar. 7, 2005) provides that the name of the product, the type of food, the type of food, the name of the business place, the location of the food, the date of manufacture, the date of distribution, the expiration of the term of distribution, etc. shall be indicated as the matters to be indicated, and Article 6(4) provides that the food falling under Article 3(1) Item (f) may be indicated only in the special cases of the above labeling, by providing that the name of the product (title of the content), the name of the business place, the date of manufacture (Packing date), the quantity of food, the method of keeping and handling the food

However, according to Article 22(6) of the Act, Articles 25 and 26(2) of the Enforcement Rule, when a food manufacturer manufactures or processes food, he/she shall set a distribution period and submit a report on the manufacture of food. When he/she intends to extend the distribution period, he/she shall submit a report on the extension of the distribution period attached thereto. Article 16 of the Act and Article 11 of the Enforcement Rule provide that when a food importer imports food, he/she shall voluntarily state the distribution period and make an import declaration thereon (see attached Form 4 of the Enforcement Rule). In full view of the purport of the above provisions, the distribution period or distribution period is basically determined voluntarily by the food manufacturer or importer (Provided, That the distribution period or distribution period shall conform to the standards of the food transfer under Article 12 of the Act). On the other hand, it appears that the distribution period is bound by Article 12(1) of the Act, and that it can be interpreted as "any other food manufacturer or importer can voluntarily report or improve the public health standards by providing accurate and reliable information on the food."

According to the reasoning of the judgment below, the court below held that the act of the joint defendant 1, an employee of fishery (mutual omitted) of the court below, made a statement different from the "distribution period" stated in the Korean language label which was inspected according to the import declaration while the importer of freezing fishery products of this case filed an import declaration constitutes a false indication as to the quality of food, etc.

3. Regarding ground of appeal No. 3

According to the reasoning of the judgment below, the court below determined that it is difficult to view the process of manufacturing and processing the frozen fishery products of this case as a new food at the request of the Jeju master company, and that the act of recording the date of manufacturing differently from the date of manufacturing indicated at the time of importation of the fishery products of this case constitutes a false label on food quality. In light of the relevant legal principles and records, the judgment of the court below is acceptable, and there is no error of law such as misunderstanding of legal principles as to the act of manufacturing, etc.

4. Regarding ground of appeal No. 4

According to the reasoning of the judgment of the court of first instance cited by the court below, although there are somewhat insufficient points in its explanation, it is evident that the co-defendant 1 of the court below determined that the non-indicted 1 shared with the non-indicted 1 who operates the Aju commercial company and conducted the act of execution. Thus, since it is evident that the co-defendant 1 of the court below and the non-indicted 1 have a co-principal relationship, Article 30 of the Criminal Act was not stated in the application of the law, there is no error of law that affected the conclusion of the judgment, the omission of judgment, or the judgment (see Supreme Court Decisions 92Do2196, Oct. 27, 1992; 97Do1180, Jul. 11, 1997, etc.).

5. Conclusion

In addition, the Defendant’s appeal on the part falling under Article 1.b. (4) of the Criminal facts of the judgment of the court of first instance as to the part falling under Article 1.2 of the Criminal facts of the judgment of the court of first instance shall be reversed on the grounds of its reasoning. As long as this part should be reversed, the remaining part of the crime sentenced to one punishment on the concurrent crimes of Article 37 of the Criminal Code

Therefore, all the judgment below against the defendant is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Ill-sook (Presiding Justice)