[1] The meaning of "sales business outside the market of a wholesale market corporation" prohibited by Article 35 (1) of the Act on Distribution and Price Stabilization of Agricultural and Fishery Products

[2] In a case where a certified auctioneer belonging to a wholesale market corporation was asked by a purchaser outside the place where a wholesale market corporation was permitted to open a wholesale market to supply the Government-Stockpile fishery products, and the above intermediate wholesaler pretended that the above intermediary wholesaler was awarded a bid for Government-Stockpile fishery products and sold them directly to the above buyer, the case holding that the above certified auctioneer's act does not constitute a crime of Article 86 subparagraph 5 or Article 35 (1) of the Act on Distribution and Price Stabilization of Agricultural and Fishery Products which constitutes the elements of sales outside the market

[1] For the purpose of Article 35(1) of the Act on Distribution and Price Stabilization of Agricultural and Fishery Products, the term “sales business outside the market of a wholesale market corporation” means a provision prohibiting wholesale business from being entrusted or purchased from a shipper outside the place where permission for opening the wholesale market was obtained for a fair auction, and by auction or bidding (the method of exceptionally fixed or veterinary trading in accordance with the latter part of Article 32 of the same Act), i.e., the provision on the restriction of business place of a wholesale market

[2] In a case where an intermediary wholesaler, who belongs to a wholesale market corporation, pretended to be awarded a bid for government-guaranteed fishery products in the name of the intermediary wholesaler belonging to the above market and sold them directly to the above buyer after receiving a request from the purchaser outside of the wholesale market, the case holding that the act of the above auctioneer does not constitute a crime of Article 86 subparagraph 5 and Article 35 (1) of the Act on Distribution and Price Stabilization of Agricultural and Fishery Products, on the ground that no act related to the above sales, such as the sales contract was done by telephone and the payment of the purchase price was made by means of account transfer, shall be punished pursuant to other provisions of the Act on Distribution and Price Stabilization of Agricultural and Fishery Products, on the ground that there was no direct occurrence in Busan, which is the buyer's location.

[1] Article 35(1) of the Act on Distribution and Price Stabilization of Agricultural and Fishery Products / [2] Article 35(1) and Article 86 subparag. 5 of the Act on Distribution and Price Stabilization of Agricultural and Fishery Products

Defendant 1 and nine others

Defendants

Equitable

Attorney Kim Tae-young et al.

1. Cheongju District Court Decision 2005Ma1326 decided Apr. 4, 2006 / 2. Cheongju District Court Decision 2006DaMa395 decided Aug. 29, 2006

The part concerning Defendant 6, 7, 8, and 10 among the judgment of the court of first instance and the judgment of the court of second instance shall be reversed.

Defendant 6, 7, and 8 shall be punished by respective fines of 2,00,000 won, and Defendant 10 shall be punished by fines of 50,000 won.

In the event that Defendant 6, 7, 8, and 10 did not pay each of the above fines, the above Defendants shall be confined in the workhouse for the period calculated by converting 50,000 won per day into one day.

Defendant 6, 7, 8, and 10 shall be ordered to pay an amount equivalent to the above fine.

In the case of violation of the Act on Distribution and Price Stabilization of Agricultural and Fishery Products by outside the market for Defendant 1, 3, and 4 stock companies, each of them shall be acquitted.

Defendant 1, 2, 3, 4, Defendant 5, and 9 against the judgment of the court of first instance are dismissed, respectively.

1. Summary of grounds for appeal;

A. As to the judgment of the first instance court

(1) Summary of the grounds for appeal by Defendant 1, 2, 3 and 4 corporation

Although the above defendants 5, 6, 7, 8, and 9, who are intermediate wholesalers, collected commission fees lawfully from local distributors without knowing the fact that they are concurrently engaged in the business of local distributors, the court below erred by misapprehending the fact and finding guilty.

(2) Summary of the grounds for appeal by Defendant 5, 6, 7, 8, 9, and 10

Although the above Defendants, without knowing the fact that the intermediate wholesaler was prohibited from engaging in the act of a local distributor, recommended Defendant 4 to establish a local distributor at the same time, the lower court convicted the Defendants by misunderstanding of the fact, and even if the Defendants were guilty, the lower court’s punishment (the amounting to KRW 4 million for each of the fines of KRW 59, KRW 4 million, KRW 6,7, and KRW 3 million for each of the fines of KRW 8, KRW 100,000, KRW 2 million) is too unreasonable.

B. As to the second judgment of the court below

Defendant 1, Defendant 3, and Defendant 4 Co., Ltd. received the Government-Stockpiling Fishery Products from a arbitrari, and carried out the auction procedure by entering the entire quantity into the market corporation, and they received the bid from the intermediate wholesalers and sold them to Nonindicted Co. 1, and both profits from sales were attributed to the profits of the intermediate wholesalers. Although the above Defendants were merely merely arranged for sales to the intermediate wholesalers, the lower court erred by misapprehending the fact, and thereby convicted the intermediate wholesalers.

2. Determination:

A. As to the judgment of the first instance court

(1) Determination on the assertion by Defendants 1, 2, 3, and 4

In full view of the evidence duly examined and adopted by the court below and the trial court, in particular, the following facts acknowledged by each police interrogation protocol against the defendants 1 and 2, it is sufficient to recognize the fact that the above defendants acquired commission fees in the name of brokerage commission fees in return for the preparation of documents on disguised auction, and there is no error of mistake of facts in the judgment below, contrary to the following, in full view of the fact that the defendants 1 and 2 arbitrarily decided the price of the articles brought by the intermediary wholesalers in the mountainous district without going through the auction procedure for the articles directly, and that they lawfully conducted auction between the intermediary wholesalers and the defendant 4 corporation; the defendants 3 was aware of the above acts as the representative of the market corporation; and the above defendants knew of the above acts as the representative of the defendant 1 and 2; and the above defendants made up the auction documents as mentioned above and deposited only the remaining money with the account number notified by the intermediary wholesalers.

Therefore, this part of the appeal by the above Defendants is without merit.

(2) Determination as to Defendant 5, 6, 7, 8, 9, and 10’s assertion

First of all, Article 16 of the Criminal Code provides that the above defendants' assertion of mistake of facts shall not be punishable only when there is a justifiable reason for misunderstanding that his act constitutes a crime under the law. However, this does not mean a simple legal site, but it is generally a crime, but it is a general crime, but it is recognized that his act does not constitute a crime under the law in his special circumstances and there is a justifiable reason to mislead misunderstanding (see, e.g., Supreme Court Decision 2003Do5773, Nov. 27, 2003). In this case, even though the defendants did not know that such act is not permitted under the law at the time of the crime of this case, such reason constitutes a mere legal site, and it does not interfere with the establishment of a crime, since the defendants' act was not perceived as an act permitted under the law, and therefore, this part of the appeal by the defendants is without merit.

Next, the court below's punishment against Defendant 5, 9 is deemed appropriate, but the court below's punishment against Defendant 6, 7, 8, and 10 is deemed unfair because the above defendants' appeal against this part of the appeal against Defendant 5, 9 is without merit, and this part of the appeal against Defendant 6, 7, 8, and 10 is with merit. The appeal against this part of the appeal against Defendant 6, 7, 8, and 10 is with merit.

(3) Ex officio determination

Since the prosecutor applied for changes in the indictment to Defendant 10 and this court permitted it, the part against Defendant 10 in the judgment below against Defendant 10 can no longer be maintained.

B. As to the second judgment of the court below

(1) Summary of the facts charged of this case and the judgment of the court below

The summary of the facts charged of this case is as follows: "Defendant 4 corporation is a wholesale market corporation established for the purpose of wholesale and consignment sales of fishery products; 3 is the representative director of the above corporation; 1.3. The director of the fishery division and 1. The wholesale market corporation is prohibited from selling agricultural and fishery products at a place other than the wholesale market; 1.3. The above intermediary wholesaler borrowed the name of the intermediary wholesaler belonging to the above market from the request of non-indicted 1 to supply the Government reserved fishery products; 4. The above intermediary wholesaler conspired to sell fishery products at a place other than the wholesale market by selling them directly to the above non-indicted 1; 1.5. The court below convicted the above non-indicted 3 corporation and the above non-indicted 4. The defendant's sale of fishery products in violation of the Act on the Sale of Agricultural and Fishery Products at the place other than the wholesale market by selling them to the above non-indicted 1, 200, 308.4. The above defendants' total sale of fishery products from the above non-indicted 5.

(2) Facts of recognition

According to the evidence duly examined and adopted by the court below and the court below, the following facts are recognized.

(A) From 4-5 years to 4-5, Defendant 1 was known to Nonindicted 1 and the intermediary wholesaler, Defendant 10, Nonindicted 2 ( Nonindicted 3, whose father was registered as intermediary wholesaler), and Nonindicted 4 (hereinafter “ intermediary wholesaler”) are as between Nonindicted 1 and Nonindicted 1.

(B) Nonindicted Party 1 requested Defendant 1 to purchase government reserve items by telephone at the time indicated in the attached list of crimes.

(C) Defendant 1, with Defendant 3’s approval, expressed to intermediate wholesalers the intent to purchase the Government-Stockpiles as ordered by Nonindicted 1 in the name of each intermediate wholesaler.

(D) Defendant 1 informed Nonindicted 1 of the account number in the name of intermediary wholesaler in advance, and Nonindicted 1 deposited the purchase price in advance before receiving the goods.

(E) Defendant 1 sent to Nonindicted 1, among government reserve items received from the Suhyup, the volume of items ordered by Nonindicted 1, using the vehicle that was released from the Suhyup.

(F) On the same day, Nonindicted Party 1 deposited the purchase price for the movement purchased from Nonindicted 2 (Nonindicted 3) listed in the table of crime No. 3 in the same day into the account of Defendant 10, along with the purchase price for the movement purchased from Defendant 10. The purchase price for the movement purchased from Nonindicted 2 (Nonindicted 3) listed in the table No. 5 also deposited the purchase price for the movement purchased from Nonindicted 4 on the same day into the account of Nonindicted 4’s name, along with the purchase price for the movement purchased from Nonindicted 4 on the same day. The purchase price for each movement purchased from Nonindicted 6 and No. 7, and Nonindicted 2 (Nonindicted 3) was deposited into the account of Nonindicted 4, a certified auctioneer of the market corporation, rather than the above seller’s account.

(G) Defendant 10 and Nonindicted 4 were to withdraw the money upon deposit from Nonindicted 1 and bring it to Defendant 1 in full. Defendant 1 appropriated the remainder of the money excluding the amount equivalent to 3% of the successful bid price for the intermediate wholesaler’s payment to the market corporation.

(h) Defendant 1 received a copy of business registration from Nonindicted 1 by facsimile and had his employees prepare a tax invoice in the name of each intermediary wholesaler, and delivered it to Nonindicted 1 and intermediary wholesalers.

(3) Relevant provisions

Act on Distribution and Price Stabilization of Agricultural and Fishery Products

Article 1 (Purpose and Omission of Contents)

Article 2 (Definition and Omission of Contents)

Article 17 (Opening, etc. and Omission of Contents of Wholesale Market)

Article 23 (Designation of Wholesale Market Corporation and Omission of Contents)

Article 29 (Registration of Local Distributor and Omission of Contents)

Article 31 (Principles and Omission of Details of Entrusted Sales)

Article 32 (Methods of Trading and Omission of Contents)

Article 35 (Business Restrictions on and Omission of Contents of Wholesale Market Corporations)

Article 86 (Penalty Provisions, Omission of Contents, and Omission of Contents)

Article 8 (Penalty Provisions and Omission of Contents)

Article 89 (Joint Penal Provisions and Omission of Contents)

Enforcement Regulations of the Act on Distribution and Price Stabilization of Agricultural and Fishery Products

Article 15 (Permission for Opening Wholesale Market and Omission of Contents)

Article 16 (Operational Rules and Omission of Contents)

(4) Judgment of the court below

First, in full view of the facts acknowledged in the above Paragraph 2, it is reasonable to view that Defendant 1 and Defendant 3, an executive officer or employee of Defendant 4 corporation, conspired to sell dynamics, which are government stockpiles, to Nonindicted 1, without undergoing the auction procedure (on the consent of intermediary wholesalers, only borrowing the name of intermediary wholesalers) and sales proceeds therefrom, and that the sales proceeds substantially belonged to the profits of Defendant 4 corporation (debt collection and commission fees) (if a person who sells agricultural and fishery products to Nonindicted 1, an intermediary wholesaler, the illegal act of the market corporation, without undergoing the auction procedure in violation of Article 32 of the Agriculture Conservation Act, is the wholesale act of agricultural and fishery products to the intermediary wholesaler without undergoing the auction procedure, and there is no provision punishing a violation of Article 32

Next, comprehensively considering the above three provisions, the Agricultural Products Sales Act provides that transactions of agricultural and fishery products shall be conducted through competitive trade centered on the agricultural and fishery products wholesale market established to ensure smooth distribution of agricultural and fishery products and maintain appropriate prices, and the local distributors in charge of shipping to the wholesale market at the place of origin; the intermediate wholesaler in charge of distributing to consumers in the wholesale market; the local distributor in charge of wholesale market under entrustment of wholesale market to sell agricultural and fishery products intended to sell at the wholesale market; and the intermediate wholesaler, the market corporation and its executives and employees are engaged in the business of the local distributor at the wholesale market (Article 29(2) of the Agricultural Products Protection Act) in order to separate their respective capacity, and the wholesale market corporation's business is prohibited from conducting the business of the local distributor at the place of sale at the wholesale market (Article 23(2) of the Agricultural Products Protection Act); the local distributor (Article 29(4) of the Agricultural Products Protection Act). In addition, the market corporation, in principle, shall list the agricultural and fishery products to the shipper and shall exceptionally participate in the business of the Agricultural Products Sales Act (Article 31).

Therefore, in this case where Defendant 1 sold government stockpiles to Nonindicted Party 1 located in Busan, it cannot be concluded that the sales contract between Defendant 1 and Nonindicted Party 1 was made by telephone as to whether the sales contract was made in the Seo-gu Busan, Seo-gu, Busan, the buyer's location, and that it was sent to Busan, and that the sale price was paid by means of account remittance, etc., in full view of the facts as examined in the above Paragraph (2) above, since no act related to the above sales was done directly in Busan, it cannot be concluded that the above sales act was made in Busan (title omitted) company located in Busan, because the above act of Defendant 1 (Defendant 4 corporation) was punished by other provisions under the Agricultural Stabilization Act, it cannot be concluded that the above act of Defendant 1 (the above act of selling the non-party 4 corporation) was done in Busan, but it did not constitute a crime of modification of indictment under Article 86 subparagraph 5 and Article 35 (1) of the Agricultural Design Act, which constitutes the elements of the non-party wholesale market corporation's act.

Therefore, this part of the appeal by the Defendants is justified.

3. Conclusion

Therefore, the part on Defendant 6, 7, 8, and 10 among the judgment of the court of first instance and the judgment of the court of second instance are reversed, and the judgment below is reversed and it is again decided as follows

The summary of the facts constituting the crimes of Defendants 6, 7, 8, and 10 and the summary of the evidence acknowledged by this court are as stated in each corresponding column of the judgment of the court of first instance except for those cases as follows, and therefore, they are quoted as they are in accordance with Article 369 of the Criminal Procedure Act.

“In spite of the fact that an intermediary wholesaler is prohibited from trading agricultural and fishery products other than those listed in the wholesale market corporation, Defendant 10 shall trade agricultural and fishery products other than those listed at the wholesale market on June 21, 2005, at around 01:00, equivalent to KRW 1,050,000, such as fishery products, such as air conditioners and 50 boxes in Busan, and at the same place on July 19, 19, at around 01:00, equivalent to KRW 2,130,000, total amount of KRW 1,080,000, such as fishery products, such as air conditioners and 1,080,000, after purchasing at the same place on July 19, 200,

1. Relevant Article of the Act and the choice of punishment for the crime;

Defendant 6, 7, and 8: Article 88 subparag. 4 and Article 29(2) of the Act on Distribution and Price Stabilization of Agricultural and Fishery Products (each of the instant fines)

Defendant 10: Article 88 subparag. 6 and Article 31(2) of the Act on Distribution and Price Stabilization of Agricultural and Fishery Products (Selection of Fines)

1. Detention in a workhouse;

Defendants: Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Defendants: Article 334(1) of the Criminal Procedure Act

The summary of the facts charged of this case is the same as that of the above 2-B-1 (1), and this constitutes a case where there is no proof of crime as seen in Article 2-2-B-4 (4), and thus, the Defendants are acquitted under the latter part of Article 325 of the Criminal Procedure Act.

Judges fishing confinement (Presiding Judge)