Requirements for establishment of joint principal offender / Degree of proof as to the establishment of joint principal offender

Article 30 of the Criminal Act, Article 308 of the Criminal Procedure Act

Supreme Court Decision 2002Do7477 Delivered on March 28, 2003 (Gong2003Sang, 1121) Supreme Court Decision 2002Do5112 Delivered on March 11, 2005 (Gong2005Sang, 618)

Defendant

Defendant

Law Firm International Law Firm, Attorney Kim Dong-jin

Busan High Court Decision 2017No420 decided November 22, 2017

The judgment below is reversed, and the case is remanded to Busan High Court.

The grounds of appeal are examined.

1. As to the violation of the Food Sanitation Act

Examining the reasoning of the lower judgment in light of the evidence duly admitted by the lower court, the lower court is justifiable to have found the Defendant guilty of violating the Food Sanitation Act among the facts charged in the instant case on the grounds stated in its reasoning, and contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle

2. As to the violation of the Act on Origin Labeling of Agricultural and Fishery Products

A. A. A joint principal offender under Article 30 of the Criminal Act commits a crime jointly by two or more persons. In order to establish a joint principal offender, the subjective requirement is the intent and objective requirement of joint processing, and the fact of execution of a crime through functional control based on a joint doctor. A joint principal offender’s intent is insufficient to recognize and refrain from committing another person’s crime, and to accept it without restraint. A joint principal offender’s intent is one of the joint principal offenders to commit a specific criminal act with another’s intent (see, e.g., Supreme Court Decision 2002Do7477, Mar. 28, 2003). The establishment of a joint principal offender must be proven to the extent that there is no reasonable doubt as to the relation of mutual use as above through the whole process of realizing the crime. If there is no such proof, even if there is no doubt as to guilt between the Defendant and the Defendant, it is difficult for the Defendant’s interest to be proven (see, e.g., Supreme Court Decision 2002Do7477, Mar. 125, 2015).

B. Of the facts charged in the instant case, the summary of the part regarding the violation of the Act on Origin Labeling of Agricultural and Fishery Products in the Act on Origin Labeling of Agricultural and Fishery Products was provided to 12 persons, including Nonindicted 1, the operator of the restaurant business, including Nonindicted 1, and Nonindicted 2, who is the operator of the ○○○ ○○ △△△△△ (mutual omitted) near the Busan ○○○ △△△△△△△△, in a disguised manner, sell the freezing of the “Japansan” to consumers by pretending the freezing of the “domestic products”. The Defendant conspired with 12 persons, including Nonindicted 1, etc., from May 2013 to June 2016, 2016 by supplying 1,266 boxes of the nives installed in front of the Defendant’s home. Accordingly, the Defendant found the △△△△△△ and ○○ ○○ market in collusion, thereby selling the entire quantity of the “Japan 1,000’s origin” to many consumers in order.

C. In light of the following circumstances, the lower court determined that: (a) while fully aware of the circumstances that Nonindicted Party 1, etc., etc., who were supplied by him, had the intention to sell the destroyed goods in disguised manner to “domestic origin”; (b) provided the destroyed goods with positive intent to obtain profits by using their sales activities; and (c) the Defendant’s act of supplying the goods in Japanese origin and selling Nonindicted Party 1, etc., by combining them with a single act under the implied agreement with each other with intent to gain his own profits by using the act in its structure, the lower court fully recognized the relationship between the Defendant and Nonindicted Party 1, etc. and the functional control over the disguised sales of the goods in Korea.

① The disguised sale of the country of origin of this case was conducted in △△, widely known as the main place of production and sales of the domestic anti-explication and the surrounding ○○ market.

② The Defendant, as in the facts charged, supplied freezing goods, as the main object of the charge, is eight small-scale ○○ market workers, including Nonindicted Party 2. The Defendant: (a) operated to put the freezing goods of “Japan” that were ordered by the Defendant into a water tank installed in his/her dwelling; (b) then directly delivers the said goods to his/her old store at around 07:00 on the following day; and (c) traded by means of collecting the money for freezing goods of “Japan” on the day when he/she visited and supplied to his/her old store at around 17:0-18:00 on the same day.

③ The Defendant was the only supplying store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store (which seems to have been able to sell the store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store store

④ The merchants indicated in the facts charged, including Nonindicted 1, who were supplied with the destruction of the “Japanese Products” by the Defendant, have sold them to customers as “domestic products” if they ask customers any place of origin or any place of origin without indicating or notifying the country of origin, without any differences between the destruction of domestic products, their handout status, sales units, prices, etc.

⑤ Even based on the Defendant’s prosecutorial statement, the Defendant purchased from the importer one box for freezing “Japan” amounting to KRW 27,000 and sold the same to the said merchant at KRW 35,00, and acquired profits equivalent to the difference.

D. However, it is difficult to accept the lower court’s recognition of the Defendant as a co-principal of disguised selling of origin committed by Nonindicted Party 1, etc. for the following reasons.

(1) In the instant case, in order to punish the Defendant as a co-principal of disguised selling of the country of origin, it is insufficient to say that the Defendant, including Nonindicted 1, was aware that the merchants, such as the Defendant, knew of the fact that he sold the freezing goods supplied from the Defendant in Korea, and, at least, the Defendant’s intent to commit a disguised selling of the country of origin by using his act in order to commit a disguised selling of the country of origin.

(2) However, according to the reasoning of the lower judgment and the evidence and records duly admitted by the lower court, the following circumstances are revealed.

1. From 2010 to 2010, the Defendant handled or sold ○○○, domestic freezing goods, and Japanese frozen goods with the trade name “(trade name 2 omitted)” and supplied as part of the business △△, including Nonindicted 1, and the ○○ Market merchants with the orders of “Japan” freezing goods.

② The content of Nonindicted 1’s statement is that a merchant who sells the destroyed goods at the ○○ Market and △△△△△△, even though being aware of the fact that the Defendant sold the said goods by deceiving the freezing goods into a domestic product, supply the said goods to the merchants, and does not mean that the Defendant and the Defendant conspired to commit a crime of disguised sale in the country of origin.

③ In addition to the Defendant, there were intermediate merchants who supply the destroyed goods to the ○○ Market merchants. However, the said merchants seem to have placed a lot of orders by the Defendant companies at △△△ near the ○○ Market and lower prices.

④ In general, the merchants of ○○ market stated to the effect that “the Defendant was not directly involved in the sale of freezing goods at the same time, and the amount of destroyed goods supplied was also paid according to the general market price.”

(3) In light of the above circumstances, it is difficult to view that the circumstances presented by the lower court alone alone consisting of functional control by a co-processing intent to shift a disguised selling of origin to the Defendant’s commission of a disguised selling of goods through the use of the Defendant’s act, solely with Nonindicted Party 1, etc., with the Defendant’s provision of freezing goods to merchants, including Nonindicted Party 1, etc.

(4) Nevertheless, the lower court acknowledged the Defendant as a co-principal for disguised sale of country of origin solely based on its stated reasoning. In so doing, it erred by misapprehending the legal doctrine on co-principal, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal assigning this error is with merit

3. Meanwhile, the lower court rendered a single sentence on the ground that the violation of the Act on Origin Labeling of Agricultural and Fishery Products and the remaining convictions due to the disguised sale of the country of origin, on the ground that there exist concurrent crimes under the former part of Article 37 of the Criminal Act, and thus, the lower court

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-hyung (Presiding Justice)