Defendant

Defendant

Kim Jong-Gyeong (Court Prosecution) and the highest court (Court)

Seoul Central District Court Decision 2013 High Court Decision 2903 Decided September 10, 2013

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 2,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted by 50,000 won into one day.

In order to order the provisional payment of an amount equivalent to the above fine.

The charge of violating the Food Sanitation Act among the facts charged of this case is acquitted.

1. Summary of grounds for appeal;

A. Error of mistake

In the case of Nonindicted 2, it was replaced by the card settlement in order to help the Defendant obtain the total qualification. In the case of Nonindicted 3, it was purchased by the Defendant’s wife in order to make the Defendant’s wife, and in the case of Nonindicted 4, it was advertised or sold in an exaggerated manner by hearing the business explanation.

Nevertheless, the court below found all of the charges of this case guilty, and the judgment of the court below erred by misunderstanding the facts and affecting the conclusion of the judgment.

B. Unreasonable sentencing

The punishment (three million won of a fine) declared by the court below is too unreasonable.

2. Determination:

A. Judgment on the violation of the Food Sanitation Act

1) Summary of this part of the facts charged

No person shall make false labelling or exaggerated advertisements with respect to the names, manufacturing methods, quality and nutrition labelling of foods, etc., and food traceability labelling, and shall make an exaggerated advertisement with respect to packages, and in labels of foods and food additives, make an indication or advertisement which may cause confusion with medicine.

The Defendant sold ○○○○○ Mixed beverage as the total sales role of Nonindicted Co. 5 and Nonindicted Co. 1’s multi-level marketing organization established by Nonindicted Co. 6, and explained that “○○ ○○ ○○○” product, such as the “crime table,” was a false and exaggerated advertisement that may lead to confusion as medicine by explaining that “the ○○ ○○ ○○ ○○○ product is a fluoral governing drug with efficacy, such as urterology, high blood pressure, and so on” and providing consultation

2) The judgment of the court below

The court below found the defendant guilty of this part of the facts charged by taking account of the evidence presented in its judgment.

3) Determination of the immediate deliberation

Article 13(1) of the former Food Sanitation Act (wholly amended by Act No. 10787, Jun. 7, 2011; hereinafter the same) provides that “No person shall make false labelling or exaggerated advertisements with respect to the name, manufacturing method, quality and nutrition labelling of food, etc., and food traceability labelling; no person may make exaggerated packaging with respect to packages; and the same shall apply to foods or food additives with labels or advertisements likely to cause confusion with medicine.” According to the former Food Sanitation Act, there is no definition provision for "advertisement", and according to the Korean Language Language Ambassador of the National Institute of Korean Language, advertisements (advertisement) "1." or on such day, the media products or services are widely known to consumers through various media, and the defendant cannot be seen as having known that there is no possibility that he/she made a false representation with respect to the facts charged by the 2000 et al., al., 201.

Therefore, although this part of the facts charged constitutes a case where there is no proof of crime, the judgment of the court below that found the defendant guilty of this part of the facts charged shall be erroneous, and this part of the defendant's assertion is with merit.

B. Judgment on violation of the Door-to-Door Sales Act

The following circumstances acknowledged by the evidence duly adopted and examined by the court below: (i) the defendant entered into a sales contract at an investigative agency and purchased ○○○○ Food; (ii) the defendant stated that 38 gamblings sold were purchased through the introduction of the defendant (No. 21,23 pages of investigation records); (iii) the defendant stated that 2,60,000 won was paid in total as allowances (No. 24 pages of investigation records); (iv) the defendant did not register 170,000 won in the case of Nonindicted 5,6, the main mother, as shown in the attached crime list; and (v) the defendant did not register 2,3, and 4 to purchase the food of this case in cash (No. 2,163-164, 172 pages of investigation records); and (iv) the representative of Nonindicted 1 corporation did not register 38 gamblings as an agent; and (v) the defendant did not register 17,000 won in total to the sales organization of the defendant; and (v. 17, 17.

3. Conclusion

Therefore, the appeal against the violation of the Food Sanitation Act among the judgment below is justified, and the above part is charged with concurrent crimes with the remaining part and the judgment of the court below should be reversed in its entirety. Thus, without examining the argument of unfair sentencing, the judgment of the court below is reversed under Article 364(6) of the Criminal Procedure Act, and it is again decided as follows.

Except for deletion of "the violation of the Door-to-Door Sales, etc. Act No. 2. 2. 2. 2. 2. 2. 2. 3. 2. 3. 1. 2. 2. 2. 1. 2. 1. 1. 1. 1. 1. 1. 2. .... .... ... ....

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 51(1)1 and 13(1) of the former Door-to-Door Sales, etc. Act (wholly amended by Act No. 11324, Feb. 17, 2012); selection of fines

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

The Defendant is not guilty of the violation of the Food Sanitation Act among the facts charged in the instant case in the trial, and the sentence is imposed as ordered in consideration of the Defendant’s age, character and conduct and environment, motive, means and consequence of the crime, circumstances after the crime, etc.

Of the facts charged in this case, the summary of the facts charged as to the violation of the Food Sanitation Act is as stated in Article 2-1(a)(1) of the same Act, and it constitutes a case where there is no proof of crime as stated in Article 2-1(3) of the same Act, and thus, it is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment]

Judges Jeon Soo-hun (Presiding Judge)