In a case where a business operator, such as food manufacturing, entrusts an inspection in accordance with an order of the Minister of Food and Drug Safety, etc. to conduct an inspection, whether Article 95 subparagraph 2 of the former Food Sanitation Act applies to the act that a self-quality entrusted inspection institution issues a false statement on the inspection report (affirmative), and whether the above penal provision can be applied to a case where there is a false statement on the inspection report issued according to the request for inspection for reference, etc. without receiving an order of entrustment inspection (negative) / Whether the interpretation of the penal provision on the issuance of “false sexual statement” under the former Livestock Products Sanitary Control Act and the former Food and Drug Industry Testing and Inspection Act should be the same as the above former Food Sanitation Act (affirmative)

Even if Articles 19(2), 22(1), 24(1) and (2), 27 subparag. 2, 31(1) and (2), and 95 subparag. 2 of the former Food Sanitation Act (amended by Act No. 11985, Jul. 30, 2013; hereinafter the same) prohibit a food sanitary inspection institution from issuing a false statement of facts to a food sanitary inspection institution, Article 27 subparag. 2 of the same Act provides that “food sanitary inspection institution designated pursuant to Article 24(2)” is “food sanitary inspection institution designated pursuant to Article 24(2).” Article 24(2) provides that food sanitary inspection institutions shall perform an examination of inspection under Article 19(2) and an order of inspection under Article 22(1), and a quality inspection institution entrusted with an inspection institution shall not apply to cases where the person entrusted with an inspection enters the meaning of a specific duty to perform an inspection under Article 31(2) and enters the purport of the relevant provision differently from the facts and contents of the inspection.

Meanwhile, the former Livestock Products Sanitary Control Act (amended by Act No. 11985, Jul. 30, 2013; hereinafter “former Livestock Products Sanitary Control Act”) has provisions similar to the structure and contents of the former Food Sanitation Act (Articles 12, 20(1)2, (6)2, and 45(2)9, etc.), Article 31(2) of the current Food Sanitation Act and Article 12 of the current Livestock Products Sanitary Control Act (hereinafter “Food Sanitary Control Act”) concerning punishment for the issuance of self-quality inspections (Article 6 and Article 28(1)2, etc.). Therefore, the interpretation of the penal provision for the issuance of false sexual statements under the former Food Sanitation Control Act should also be the same as that of the former Food Sanitation Act.

Article 12(1) of the Constitution of the Republic of Korea; Article 1(1) of the Criminal Act; Article 19(2) of the former Food Sanitation Act (Amended by Act No. 11985, Jul. 30, 2013; see current Article 21 of the Special Act on the Safety Control of Imported Foods); Articles 22(1) and 24(1) (see current Article 6(2) and (2) of the current Act on the Testing, Inspection, etc. of Foods and Drugs; Article 6(3) of the current Act on the Testing, Inspection, etc. of Foods and Drugs; Article 27 subparag. 2 (see current deleted; Article 10(1) and (2) of the current Act on the Testing, Inspection, etc. of Foods and Drugs; Article 10(1) and (2) of the current Act on the Testing, Inspection, etc. of Foods and Drugs; Article 24(1) and (2) of the Food Sanitation Act (see current Article 6(1) and (2) of the Food Sanitation Act); Article 20(1) of the current Act on the Testing and Inspection, Etc.

Defendant 1 and one other

Defendant 1 and Prosecutor

Attorneys Hong-sik et al., Counsel for the defendant

Seoul Western District Court Decision 2015No634 decided November 26, 2015

All appeals are dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the ground of appeal on the false issuance of sexual records

A. Provisions and interpretation of the relevant statutes

1) According to the former Food Sanitation Act (amended by Act No. 11985, Jul. 30, 2013; hereinafter the same), the Minister of Food and Drug Safety may designate an institution that conducts inspections of the standards, specifications, etc. of foods, etc. as prescribed by the Act, for the purpose of securing the safety of food and identifying harmful foods, by classifying them according to the scope of business as an institution specializing in food sanitary inspection and an institution specializing in self-quality entrustment inspection (Article 24(1) and (2)), among those institutions specialized in food sanitary inspection, orders an inspection of imported foods, etc. (Article 19(2) and foods, etc. of places of business to conduct an inspection of food, etc. (Article 22(1)). Where the Minister of Food and Drug Safety or a Mayor/Do Governor entrusts a business operator with self-quality inspection, such as food manufacturing, etc., with an inspection of food sanitary inspection (Article 31(2)1). Meanwhile, Article 24(2)1 of the same Act provides that an institution shall directly entrust such inspection to a food sanitary inspection institution, as prescribed by Ordinance.

Article 27 of the above Act prohibits a food sanitary inspection institution from issuing a false sexual report to the food sanitary inspection institution provides that "food sanitary inspection institution designated pursuant to Article 24 (2)" is "food sanitary inspection institution designated pursuant to Article 19 (2) and Article 24 (2) provides that food sanitary inspection institution shall conduct an import inspection under Article 19 (2) and an inspection order under Article 22 (1), and the institution entrusted with self-quality inspection shall specify the scope of duties of the entrusted inspection under Article 31 (2) and specify the scope of duties of the entrusted inspection under Article 31 (2) and its legislative purport. In light of the above provisions, where a business operator, such as food manufacturing, entrusts an inspection under the entrustment inspection order of the Minister of Food and Drug Safety, etc. under Article 31 (2), if the entrusted person enters the matters different from the facts without the inspection report issued by the quality entrustment inspection institution, or enters the matters differently from the results of the inspection, it shall be deemed that Article 95 subparagraph 2 of the above penal provision is not applied.

2) Meanwhile, with respect to punishment for the issuance of the above inspection report, the former Livestock Products Sanitary Control Act (amended by Act No. 11985, Jul. 30, 2013; hereinafter “former Livestock Products Sanitary Control Act”) has a provision similar to the structure and content of the former Food Sanitation Act (Articles 12, 20(1)2, (6)2, and 45(2)9, etc.), Article 31(2) of the current Food Sanitation Act (amended by Act No. 11985, Jul. 30, 2013; hereinafter the same shall apply), Article 12 of the current Livestock Products Sanitary Control Act (amended by Act No. 11985, Jul. 30, 2013; hereinafter the same shall apply) shall also apply to cases where a person under Article 12 of the former Livestock Products Sanitary Control Act (amended by Act No. 11985, Jul. 30, 2013; hereinafter referred to as “former Food Sanitation Control Act”).

B. As to Defendant 1’s ground of appeal

For the reasons indicated in its reasoning, the lower court affirmed the first instance judgment convicting Defendant 1 of the violation of the Food Sanitation Act due to the issuance of a false sexual document (excluding the part on innocence), the violation of the Livestock Products Sanitary Control Act, the violation of the Livestock Products Sanitary Control Act, and the violation of the Food and Drug Inspection Act (excluding the part on innocence), the violation of the Food Sanitation Control Act, the violation of the Livestock Products Sanitary Control Act, and the violation of the Food and Drug Inspection Act (excluding the part on innocence).

Examining the reasoning of the lower judgment in light of the aforementioned legal principles, relevant statutes, and evidence duly admitted, the lower court’s determination as to each of the instant facts charged, which is a result of self-quality inspection under the former Food Sanitation Act, the former Livestock Products Sanitary Control Act, the current Food Sanitation Act, and the current Livestock Products Sanitary Control Act, is justifiable. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on the meaning of “in cases where a false statement is issued” in the crime of violating the Food Sanitation Act, the Livestock Products Sanitary Control Act,

C. Regarding the Prosecutor’s ground of appeal

1) Of the facts charged in the instant case against Defendant 1, the summary of Defendant 1’s violation of the Food Sanitation Act and the Food and Drug Inspection Act (excluding each guilty part) due to the issuance of false sexual statements (excluding each guilty part) is the representative director of Nonindicted Stock Company designated by the Minister of Food and Drug Safety as a food sanitary inspection institution or an examination and inspection institution of food, etc. (hereinafter “Nonindicted Stock Company”) and Defendant 1 issued a false test and inspection report on food sanitation inspection at least seven times, as shown in attached Table 1 of the judgment of the first instance, and as indicated in item (4) of the attached Table 1 of the crime list.

2) Review of the reasoning of the lower judgment and the record reveals the following facts.

① Nonindicted Co., Ltd., which Defendant 1 operates, was designated by the Minister of Food and Drug Safety as an institution entrusted with self-quality under the former Food Sanitation Act, and thereafter became an institution entrusted with self-quality tests and inspection under the Food and Drug Inspection Act.

② A business operator, such as food manufacturing, etc., requested Nonindicted Co., Ltd. to frequently inspect for the purpose of self-inspection under Article 31(2) of the former Food Sanitation Act or Article 31(2) of the current Food Sanitation Act, in addition to requesting for self-inspection for the purpose of self-inspection. The subjects and items of such inspection are not limited to the subject and items of self-inspection.

③ Nonindicted Co., Ltd. has separately set a separate inspection column for selecting either of them for the purpose of self-quality entrustment inspection or for reference in a pre-produced inspection request form, and has been requested by business operators, such as food manufacturing, to conduct an inspection by classifying the purpose thereof, and has separately set a separate inspection column in the pre-produced sexual document form, and has issued a sexual report in the same manner as the relevant written inspection request.

④ All of the written statements in this part of the facts charged are written in the column for the prosecutor’s purpose.

3) Examining the above facts in light of the aforementioned legal principles and related Acts and subordinate statutes, each sexual record recorded in this part of the facts charged does not constitute an inspection result that the Minister of Food and Drug Safety, etc. entrusted to a business operator pursuant to Article 31(2) of the former Food Sanitation Act or Article 31(2) of the current Food Sanitation Act, and thus, does not constitute an object of Article 95 subparag. 2, Article 27 subparag. 2, and Article 28(1)2, and Article 6 of the former Food and Drug Inspection Act.

In the same purport, the lower court is justifiable to have maintained the first instance judgment that acquitted the Defendant on this part of the charges on the grounds that there was no proof of crime. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on interpretation of the relevant statutes regarding the issuance

2. As to the grounds of appeal on sale, such as foods in violation of the standards and specifications

A. As to Defendant 1’s ground of appeal

Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, it is justifiable for the lower court to have upheld the first instance judgment convicting Defendant 1 of the violation of the Food Sanitation Act (excluding the portion of innocence) due to the sale of foods, etc., which do not meet the standards and specifications publicly notified by the Minister of Food and Drug Safety, based on the circumstances in its reasoning. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on the meaning of “sale of foods, etc., which do not

B. Regarding the Prosecutor’s ground of appeal

Of the instant charges against Defendant 1, the summary of the charge of violation of the Food Sanitation Act (excluding part of the charge) and Defendant 2 by selling foods, etc. that do not meet the standards and specifications publicly notified by the Minister of Food and Drug Safety and the summary of the charge is that the Defendants conspired to issue a false quality inspection report by issuing a false quality inspection report.

Examining the reasoning of the lower judgment in light of the record, it is justifiable for the lower court to have maintained the first instance judgment that acquitted the Defendant on this part of the facts charged on the grounds as stated in its holding. In so doing, contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the relevant legal doctrine

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin (Presiding Justice)