2013 Highest 1123 Violation of the Cosmetics Act

A person shall be appointed.

Clerks (public prosecution, prosecution, and public trial)

Attorney Sweak-young

May 28, 2014

A defendant shall be punished by imprisonment for not more than four months and a fine not exceeding 2,500,000 won.

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

However, the execution of the above imprisonment shall be suspended for one year from the date this judgment becomes final and conclusive.

The defendant shall be ordered to pay an amount equivalent to the above fine by provisional payment.

Criminal History Office

No person shall sell in advance cosmetics manufactured or imported for consumers to test or use, or store or display them for the purpose of sale in order to promote the promotion, sales promotion, etc. of products other than the purpose of sale.

1. Nevertheless, from March 2012 to March 29, 2013, the Defendant sold 624 kinds of 'drawing cosmetics' by means of allowing consumers to select sampling cosmetics at the office of the e-commerce company B operated by the Defendant from March 2012 to March 29, 2013, using the aforementioned computer. In addition, the Defendant sold f24 kinds of 'weaking 624 kinds of 'weaking cosmetics', such as 'W.**********.com) Internet shopping malls (www.co. kr)'.

2. In addition, from June 201 to October 10, 2013, the Defendant posted a "one-type 484 name 'one-type sample cosmetics' on the Internet shopping mall site (www. gmpet.co.co. kr) by using computers located in the place specified in paragraph (1) from around June 2012 to around October 2013, and sold sampling cosmetics in the same manner as described in paragraph (1).

Summary of Evidence

1. Partial statement of the defendant;

1. Part of the protocol concerning the examination of the suspect against the defendant;

1. Prolong screen pictures of sampling cosmetics sold;

1. Market pictures;

1. The price of other company:

1. A certificate;

1. Investigative reports (Submission of written confirmation of public officials in public health centers);

1. Investigation report ( telephone communications of public officials of public health clinics);

1. A report on investigation (collection of evidence);

1. An investigation report (pydythm search of fashion cosmetics);

1. Investigation report (a suspect operational report on confirmation of the market); and

Application of Statutes

1. Article applicable to criminal facts;

Articles 37(1) and (2) and 16(1)3 of the former Cosmetics Act (Act No. 11014), 37(1) and (2), 16(1)3

Articles 37 (former part), 38 (1) 2, and 50 of the Criminal Act

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Reasons for conviction

1. Defendant's assertion;

The purport is that the defendant's purchase of sampling cosmetics at a price in order to sell a large number of the main cosmetics, and then increased the price to customers, and the defendant's sale of sampling cosmetics is not the defendant's arbitrary determination of price due to the characteristics of the open market.

2. Determination

However, in full view of the following circumstances acknowledged in light of each of the above evidence submitted by the prosecutor and duly examined by this court, the defendant stated that sampling cosmetics are presented free of charge in each Internet shopping mall of the above facts constituting the crime, but this was intended to avoid the application of the cosmetic Act amended by the Act. In fact, part of the sales amount of the cosmetics listed in the above shopping mall is received as compensation for sampling cosmetics. Thus, the defendant violated the corresponding provisions of the Act on the above facts constituting the crime.

① In light of the fact that the site operated by the Defendant is introduced to the highest advertising column when entering the key of “dyp cosmetics” into the Internet shopping site, such as a rooftop, it seems that the Defendant’s website operation by paying advertising fees to the relevant shopping mall so that the Defendant’s site can be exposed as the top priority by the consumers finding “dyp cosmetics”.

② In a case where goods are purchased via the ordinary Internet, the advertisement is written only on the left side of the advertisement column, unlike the photograph and content, etc. of the goods, and the phrase “dypology” is written considerably on the left side of the Internet advertising column of the Defendant’s operation.

③ The composition of the main product sold by the Defendant is only 15 items, and the sampling cosmetics have reached 624 kinds in total, and even if composed, the main product is coact, i.e., fry, ampample, ampampample, ampample, ampample, ampample, shample, and bruen, etc., and the sampling cosmetics are the main purpose of the disposition to sell sampling cosmetics in light of the type and number of products of the constituent product, such as Acream, i.e., e., e., ccream, ccream, etc.

④ 본품 가격이 일반 시중가에 비해 과도하게 높다 ( 예를 들어 피고인이 판매하는 본품인 팬틴 PRO - V 극손상헤어트리트먼트 샴푸 90ml를 8700원에 판매하여, 피고인이 주장하는 바와 같이 소용량 품목이어서 희귀성이 있다고 하더라도 기타 인터넷 쇼핑몰에서 같은 제품 450ml에 4830원에 판매하는 것에 비하여 과도하게 높은 가격을 책정해 놓고 있다 ) .

(5) In order to purchase main products, samples shall be selected.

1. The following is reasonable: (a) even from the perspective of consumers who purchased the main cosmetics in the shopping mall operated by the Defendant, consumers are highly high-priced compared to the purchase of the main cosmetics on a different channel; and (b) the purchase of the main cosmetics is deemed to include the intent to purchase the sampling cosmetics in addition to the main cosmetics.

7) Even if a part of consumers’ post-purchases, it seems that the Defendant’s Internet site seems to be used to purchase sample cosmetics substantially.

3. Other arguments and judgments of the defendant

In addition, after the enforcement of the former Cosmetics Act, the defendant asked the Daejeon Metropolitan City Health Policy as to whether it is illegal to sell samples in the same manner as the defendant, while selling samples in the same manner as the defendant, and the defendant gives the answer from the relevant government office that "the provision of samples cosmetics as private goods is not deemed to constitute an act of prohibiting sale as provided in the Cosmetics Act when purchasing cosmetics products", and therefore, the defendant's above act constitutes an error in law without the awareness of illegality. However, even based on evidence submitted by the defense counsel, the defendant cannot be deemed to have made the above questioning. Thus, this part of the defendant's assertion is without merit.

Even if it can be seen that the defendant made the above questioning through his person, Article 16 of the Criminal Act provides that the act of misunderstanding that his act does not constitute a crime under the law shall not be punishable only when there is a justifiable reason for such misunderstanding. However, it is generally a crime, but if there is a justifiable reason for misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding see misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding - misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding -

However, according to the court's fact-finding with the Daejeon Metropolitan City Mayor, the purport of the defendant's questioning about the health policy of Daejeon Metropolitan City is simply about whether it is illegal to simply sell the main cosmetics at a level lower than the market price, and to make the sample cosmetics as a private goods. As seen earlier, the defendant's inquiry was not made by specifically stipulating the sale method and means of the case, the composition of the main goods and the private goods, and the purport of the response to the health policy of the Daejeon Metropolitan City is not illegal to sell the sample cosmetics, and the purport of the response to the health policy of the Daejeon Metropolitan City is merely an original response that is not illegal to give the sample as a private goods without selling the sample cosmetics. In addition, in light of the criminal history, business experience, criminal history, etc. of the defendant's crime of this case as seen earlier, there is no error in the law that has justifiable grounds

In the case of samples of cosmetics with reasons for sentencing, it is difficult for consumers to receive compensation for damages due to the deterioration of contents due to the lack of the duty to indicate the date of manufacture or the expiration date of distribution. The fact that the sale of cosmetics is prohibited through the revision of the Cosmetics Act, the defendant's short period of crime of this case, and even if the amount of quarterly sales on January 2, 2012, which is the period of crime of this case, was about 1,494,344,730 won compared to the amount of 579, 414, 215 won in the previous year's motive sales, which is about 2.6 times in the previous year's motive sales, it appears that the business methods of the defendant stated in the facts charged of this case were directly affected by the increase of sales. The defendant continued to conduct the business in the same way as the above facts charged after the prosecution of this case, in light of the circumstances alleged by the defendant, the circumstances surrounding the crime of this case should be considered, and the sentence prescribed in Article 51 of the Criminal Act shall be determined.

Judges Lee Young-young