[1] The method of examining the results of scientific research, which serves as the basis for the constituent elements of the crime

[2] Whether a crime of violation of Article 4 subparag. 7 of the former Food Sanitation Act is established in a case where a person sells food, etc. as "feed" after the import declaration was completed (affirmative)

[3] The degree of awareness of “imported feed without filing a report where import declaration should be filed” for the establishment of a violation of Article 4 subparag. 7 of the former Food Sanitation Act and of “imported feed” for the violation of Article 7 of the former Control of Livestock and Fish Feed Act

[4] Whether the term “fishing gift” constitutes “feed” under Article 2 subparag. 1 of the former Control of Livestock and Fish Feed Act (negative)

[1] The scientific research result, which serves as the basis for proving the facts constituting the elements of crime, must be proven by the evidence duly admissible as evidence.

[2] Even if the import declaration was completed as feed, it constitutes a violation of Article 4 subparagraph 7 of the former Food Sanitation Act by falling under Article 16 (1) of the former Food Sanitation Act (wholly amended by Act No. 9432 of Feb. 6, 2009) when selling it as food.

[3] The recognition of the crime of violation of Article 4 subparagraph 7 of the former Food Sanitation Act (wholly amended by Act No. 9432, Feb. 6, 2009); and the recognition of the "imported feed" in violation of Article 7 of the former Control of Livestock and Fish Feed Act (wholly amended by Act No. 8852, Feb. 29, 2008) is a subjective element of the constituent elements of the crime, and it is sufficient that this is incomplete.

[4] The term "fishing meal" cannot be deemed as nutritions for animals, fish, etc. or necessary for the maintenance of their health or growth. Thus, it does not constitute "feed" under Article 2 subparagraph 1 of the former Control of Livestock and Fish Feed Act (amended by Act No. 8852 of Feb. 29, 2008).

[1] Articles 307 and 308 of the Criminal Procedure Act / [2] Articles 4 subparagraph 7 (see current Article 4 subparagraph 6), 16 (1) (see current Article 19 (1)), and 74-2 (see current Article 94) of the former Food Sanitation Act (wholly amended by Act No. 9432, Feb. 6, 2009); Article 13 of the Criminal Act; Article 4 subparagraph 7 (see current Article 4 subparagraph 6) of the former Food Sanitation Act (wholly amended by Act No. 9432, Feb. 6, 2009); Article 74-2 (see current Article 94); Article 7 and Article 32 subparagraph 1 (see current Article 34 subparagraph 1) of the former Livestock and Fish Feed Act (Amended by Act No. 8852, Feb. 29, 2009); Article 28 subparagraph 1 (see current Article 34 subparagraph 1) of the former Livestock and Fish Control Act (see current Article 28 subparagraph 4 subparagraph 1) of the Livestock Control Act)

Defendant 1 and one other

Defendants and Prosecutor

Law Firm Pacific, Attorneys Jeong Ho-young et al.

Seoul Central District Court Decision 2008No1297 Decided February 18, 2009

Of the judgment below, the part against Defendant 1 and the part against Defendant 2, and the part against Defendant 2 concerning the violation of the Control of Livestock and Fish Feed Act, which were sold to Nonindicted Party 1, are reversed, and this part of the case is remanded to Seoul Central District Court Panel Division. The remainder of the appeal by the prosecutor is dismissed.

The grounds of appeal are examined.

1. As to the Defendants’ grounds of appeal

A. As to the first ground for appeal

The result of scientific research, which is the basis for proving the facts that meet the requirements for the composition of crime, should be proved by evidence which has duly admissible evidence.

In addition, Article 323(1) of the Criminal Procedure Act provides that when a sentence is imposed, the facts that are to be committed in the reason of the judgment, the summary of the evidence and the application of the law shall be clearly indicated. Here, “a summary of the evidence” need not be explained by any part of the evidence, but it is not necessary to explain the reason why the facts constituting a crime have been recognized by any part of the evidence, but at least, the important part of the evidence should be indicated to the extent that it is recognizable by any evidence (see Supreme Court Decision 9Do5312, Mar. 10,

According to the reasoning of the judgment below, as to Defendant 1’s violation of Article 4 subparag. 4 of the Food Sanitation Act concerning the outer glass, according to the evidence duly adopted and examined by the court of first instance as well as the data on the food food database of the Korea Food and Drug Administration, the court below found Defendant 1 guilty of the above part of the facts charged, based on the following facts: although coloring (CARIIE) buried in the outer glass of this case is being used as food coloring in Europe, it cannot be used for food as non-use in the Republic of Korea, and it is not registered in the food additives code, and according to the research conducted in England, it was published that food additives such as the above coloring cattle can cause flasing, concentration decline, excessive behavioral disorder, and alphar response to children, etc., and based on the results of the above study, the European Union introduced a warning system under which children’s behavior and attention might be adversely affected.

According to the evidence, etc. adopted by the court below through legitimate evidence examination, since the above color factory was scattered on the outer cover of this case in order to indicate that it is for feed use. If such circumstances acknowledged by the court below are acknowledged, it is likely that the above color factory is spreading to indicate that it is for feed use without controlling added quantity, etc. on the premise of food, and the outer cover of this case managed for feed is likely to cause harm to human health by mixing or adding other substances under Article 4 subparag. 4 of the Food Sanitation Act.

However, according to the records, it can be known that data on the food additives database of the above Korea Food and Drug Administration presented by the court below had not been examined, and the summary of each evidence of the judgment below and the judgment of the court of first instance did not show any evidence that can be recognized by the court below. Thus, in light of the above legal principles, the court below did not fully prove any legitimate evidence as to Defendant 1’s violation of Article 4 subparag. 4 of the Food Sanitation Act, which constitutes the elements of the crime of violation of Article 4 subparag. 4 of the Food Sanitation Act concerning the outer cover of the judgment of the court below.

Therefore, the judgment of the court below as to Defendant 1’s violation of Article 4 subparag. 4 of the Food Sanitation Act as to the outer landscape is erroneous in the misapprehension of legal principles as to the adoption of legitimate evidence, which affected the conclusion of the judgment. Thus, Defendant 1’s ground of appeal pointing this out

B. Regarding ground of appeal No. 2

Although the import declaration was completed, it constitutes a violation of Article 4 subparag. 7 of the Food Sanitation Act, since it constitutes "unreported import declaration under Article 16(1) of the Food Sanitation Act" when selling it as food.

Therefore, the judgment of the court below which found Defendant 1 guilty of violating Article 4 subparag. 7 of the Food Sanitation Act as to the outer interest is just, and there is no error in the misapprehension of legal principles as to the above legal provisions, contrary to the allegations in the grounds of appeal.

C. Regarding ground of appeal No. 3

Examining the lower judgment in light of the evidence duly examined by the lower court, the lower court’s determination that Defendant 1’s act of violation of each Food Sanitation Act, and violation of Article 4 subparag. 4 of the Food Sanitation Act, as stated in its reasoning, can be justified and acceptable, and it did not err in the misapprehension of the rules of evidence, as otherwise alleged in the grounds of appeal.

D. As to the grounds of appeal Nos. 4 and 5

Examining the judgment of the court below in light of the evidence duly examined, it is just and just that the court below recognized that Defendant 2 actually purchased the outer glass and mathy as the substantial operator of ○○ Agriculture", and judged that the crime against the violation of Article 4 subparagraph 4 of the Food Sanitation Act concerning mathy and mathy purchased on February 22, 2007 is justified, and there is no violation of the rules of evidence, as alleged in the grounds of appeal.

2. As to the Prosecutor’s Grounds of Appeal

A. As to the first ground for appeal

The recognition of the crime of violation of Article 4 subparagraph 7 of the Food Sanitation Act that "in the event that an import declaration is required, imported without filing a report," and the recognition of "import feed" in violation of Article 7 of the former Control of Livestock and Fish Feed Act (amended by Act No. 8852 of Feb. 29, 2008) is a subjective element of the constituent elements of the crime, and it is sufficient to do so.

According to the reasoning of the judgment below, the court below found Defendant 1’s violation of Article 4 subparag. 7 of the Food Sanitation Act, violation of the former Control of Livestock and Fish Feed Act, violation of Article 4 subparag. 7 of the Food Sanitation Act, violation of the former Control of Livestock and Fish Feed Act, and violation of the former Control of Livestock and Fish Feed Act on the apartment purchased by Defendant 2 on February 22, 2007, and violation of the former Control of Livestock and Fish Feed Act, and there was no external check letter showing that the instant apartment house was imported differently from the outer report of this case, and there was no evidence suggesting that Nonindicted 2 also explained the Defendants about whether the instant apartment house was imported and distributed to the Defendants beyond the degree of receiving the feed for feed, and there was no general circumstance that the distribution of the feed for feed is limited to receiving the feed for feed, and that there was no possibility that it would be sufficient for the Defendants to be acquitted of all of the facts charged.

However, in light of the legal principles as seen earlier, it is difficult to accept such determination by the lower court for the following reasons.

First, even according to the judgment of the court below, the court below acknowledged the circumstance that the Defendants purchased the instant house from Nonindicted 2 and Nonindicted 3, with the knowledge that it was difficult for them to use it for food due to the lack of the situation of receiving house by directly viewing the sample in a part of stale or stale, or hearing the circumstances acquired by Nonindicted 2 through bidding.

In addition, according to the evidence, etc. adopted by the court below through lawful examination of evidence, the following facts are revealed: domestic garments are produced and most of them are sold at high food prices; and the defendants have operated food manufacturers and processors for not less than 10 years, respectively, as raw materials for garment and math. Thus, the defendants are deemed to have been well aware of the circumstances that domestic garment and math were sold for feed or it is difficult for them to purchase at a significantly low price.

In addition, the Defendants did not expressly assert that the instant case did not know that the received and received were imported, and instead, Defendant 1 stated that “the price similar to the price of the received and received food for import from the Korea Grain Reprocessing Cooperatives” was the purchase of the instant received and received food for import from the Korea Grain Reprocessing Cooperatives, etc., and argued that the Defendants had been aware of the fact that the instant received and received were imported.”

Therefore, in light of the above circumstances, although the defendants can be found to have been aware at least of the fact that the head of the instant house was imported as feed and did not file an import declaration as food, the court below acquitted all of the facts charged for the above reasons, which affected the conclusion of the judgment by misapprehending the legal principles as to the subjective elements of the constituent elements of crime. Thus, the ground of appeal pointing this out has merit.

B. Regarding ground of appeal No. 2

According to the reasoning of the judgment below, the court below acquitted Defendant 2 of all the charges on the ground that Defendant 2’s violation of the Food Sanitation Act and violation of the former Control of Livestock and Fish Feed Act in the part of selling the outer glass to Nonindicted Party 1, in order to establish a crime of violation of Article 4 of the former Food Sanitation Act, the outer glass should be sold as food. In order to establish a crime of violation of Article 7 of the former Control of Livestock and Fish Feed Act, it should be sold for the purpose other than the purpose prescribed by relevant Acts and subordinate statutes, such as the composite feed, etc.

In order to establish a crime of violation of Article 4 of the Food Sanitation Act, the sale as food should be done, and the sale as food is not deemed to have been made, so the judgment below which acquitted the violation of each part of the Food Sanitation Act is just, and the judgment below which acquitted the defendant on the violation of each part of the Food Sanitation Act is not erroneous, contrary to the allegations in the grounds of appeal

However, Article 7 of the former Control of Livestock and Fish Feed Act provides that "no person shall sell feed for the mixture of imported feed or for any purpose other than that prescribed by the Ordinance of the Ministry of Agriculture and Forestry"; Article 4 (1) of the former Enforcement Rule of the Control of Livestock and Fish Feed Act (amended by Ordinance of the Ministry of Agriculture and Forestry No. 1 of March 3, 2008) provides that "other purposes prescribed by the Ordinance of the Ministry of Agriculture and Forestry" shall refer to single feed, raw materials for feed, raw materials for feed, research and experiment at national and public research institutions, or practical use at schools under the Elementary, Secondary and Secondary Education Act and Higher Education Act"; Article 2 of the former Control of Livestock and Fish Feed Act provides that " feed" shall not be deemed as "vegetable use for livestock under the Livestock Industry Act and animals prescribed and publicly notified by the Minister of Agriculture and Forestry or for the purpose of maintaining their health or growth, and it shall not be deemed as "vegetable feed or animal feed" prescribed and announced by the Minister of Agriculture and Forestry as "vegetable feed or feed for the purpose of feed."

Nevertheless, the court below rendered a not guilty verdict on this part of the facts charged as to the violation of Article 7 of the former Control of Livestock and Fish Feed Act. The judgment of the court below is erroneous in the misapprehension of legal principles as to the above law, which affected the conclusion of the judgment. Thus, the ground of appeal

3. Scope of reversal

Furthermore, as to the scope of reversal, the part on Defendant 1 should be reversed from the violation of Article 4 subparag. 4 of the Food Sanitation Act concerning the outer glass among the violation of the Control of Livestock and Fish Feed Act and the guilty part. Since the lower court rendered a single sentence on the guilty part, it cannot be maintained in its entirety.

In addition, the part against Defendant 2 should be reversed because the violation of the Control of Livestock and Fish Feed Act, which sold the outer glass to Nonindicted Party 1 among the non-guilty part, and the violation of the Control of Livestock and Fish Feed Act concerning the return and receipt of the house purchased on February 22, 2007 (the violation of Article 4 subparag. 7 of the Food Sanitation Act concerning the return and receipt of the house purchased on February 22, 2007, which is the guilty part, should be reversed, because the violation of Article 4 subparag. 4 of the Food Sanitation Act, which is the guilty part, is in a commercial concurrent relationship with the upper one, and the non-guilty part should be reversed in the case of the reversal of the guilty part, and one sentence should be imposed in the case of concurrent crimes under the former part of Article 37 of the Criminal Act, and the remaining part of

4. Conclusion

Therefore, among the judgment of the court below, the part against Defendant 1 and the part against Defendant 2, and the part against the violation of the Control of Livestock and Fish Feed Act concerning the outer glass sold to Nonindicted Party 1 among the non-guilty part against Defendant 2, are reversed, and this part of the case is remanded to the court below for a new trial and determination. The remainder of the appeal by the prosecutor is all dismissed. It is so decided as per Disposition by the assent

Justices Cha Han-sung (Presiding Justice)