Defendant

Defendant

Escencies

Attorney Kang Han-han et al., Counsel for the defendant-appellant

Seoul Central District Court Decision 2005Da3023, 4005 decided Dec. 23, 2005

The part of the judgment of the court below against the defendant is reversed.

Defendant shall be punished by a fine of KRW 2,000,000.

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

The defendant shall be ordered to pay the amount equivalent to the above fine.

1. Summary of grounds for appeal by the defendant;

A. Error of mistake

As to the facts of the crime No. 1-B of the judgment below, there is no obligation to indicate the distribution deadline as to the natural fishery products under the interpretation of the Health Unit and the Food Sanitation Act, and the distribution deadline, which was originally indicated in the frozen fishery products of this case, is merely the arbitrary statement by the deaf-gu Co., Ltd. (hereinafter “agriculture”) which is the importer, and thus, the labels with the distribution deadline stated above are removed and the Defendant arbitrarily stated the date of manufacture and the distribution deadline, and the sale of fishery products with the expiration of the distribution deadline cannot be seen as unlawful.

B. Unreasonable sentencing

Even if all the facts charged in the instant case against the Defendant are found guilty, the lower court’s punishment of a fine of KRW 4 million is too unreasonable.

2. Determination:

A. Ex officio determination

Before examining the grounds for appeal by the Defendant, the health unit, and the prosecutor, as stated in the judgment of the court below, filed an application for changes in the indictment with the contents of "24,290,000 won" as stated in Section 1-B (4) of the crime No. 1-2 of the Criminal Procedure Act and "before December 9, 2005," and "before May 27, 2005," respectively, and "2.50,00 won" as stated in Section 7 of the Criminal Procedure Act are changed to "24,290,00 won," and the part of the judgment of the court below as to the violation of the Food Sanitation Act concerning this part of the facts charged as a premise of the initial indictment cannot be reversed, since this part of the facts charged and the remainder of the facts charged against the Defendant are concurrent crimes under the former part of Article 37 of the Criminal Act, and thus, the entire part of the judgment of the court below against the Defendant cannot be maintained.

However, despite the amendment of the above indictment, the defendant's assertion of misunderstanding of facts is still subject to the judgment of this court after the amendment.

B. As to Article 1-1(b) of the facts constituting the crime in the judgment below

(i)The relevant provisions;

According to the former Food Sanitation Act (amended by Act No. 7374 of Jan. 27, 2005; hereinafter the same shall apply) and the former Enforcement Rule of the Food Sanitation Act (amended by Ordinance of the Ministry of Health and Welfare No. 324 of Jul. 28, 2005; hereinafter the same shall apply), the purpose of this Act is to contribute to the improvement of national health by preventing sanitary harm caused by foods and improving the quality of food nutrition (Article 1 of the Act). The purpose of this Act is to contribute to the improvement of national health (Article 1 of the Act). The Act provides that all kinds of food, excluding those taken into use as medicine, shall be construed as “food” (Article 2 subparag. 1 of the Act). On the other hand, the Commissioner of the Korea Food and Drug Administration may, if deemed particularly necessary for national health, determine and publicly notify the standards concerning the indication of food or food additives for sale, containers and packages, and the names, methods of labeling and food packaging prescribed in Article 10(1) of the Act, and the standards are not indicated or falsely indicated.

On the other hand, the Ministry of Health and Welfare enacted by delegation of Article 11(2) of the Act provides that with respect to false labelling and exaggerated advertisements prohibited by the Act, any act of indicating or notifying the name, manufacturing method, quality, nutrition, raw materials, ingredients or the use of food, etc. by means of containers, packages, radio, television, newspapers, magazines, music, videos, videos, printed materials, printing materials, signboards, the Internet, etc., which falls under any of the following subparagraphs, and any act of indicating or publicizing the same differently from the fact in indicating the "date of manufacture" or the "time limit of distribution" (Article 6(1)4 of the Enforcement Rule).

According to Article 10(1) of the Act, “standards for labeling food, etc.” (amended by Presidential Decree No. 2005-12, Mar. 7, 2005) established by delegation of the authority of the Commissioner of the Korea Food and Drug Administration (amended by Presidential Decree No. 2005-12, the date of manufacture” means “the date of manufacturing no longer requires manufacturing or processing except for packages (the date of completion of the final process in cases of products that go through a separate manufacturing process, such as spawnizing germs and germs after packaging).” However, products which are subdivided and sold shall be the date of manufacture of subdivided raw materials products, and products which do not change their storage quality as raw materials products as raw materials products packing (Article 2 subparag. 3). In addition, Article 2 subparag. 4 of the Act provides that “the date of sale is allowed from the date of manufacture of products” (Article 3); Article 3(f) of the Food and Drug Products subject to labeling shall be included in the name of agricultural, forest, livestock, and fishery products subject to labeling or food packaging products (Article 4).

Meanwhile, Article 22(6) of the Act provides that when a person who has obtained permission for, or filed a report on, manufacturing or processing business of foods or food additives manufactures or processes such foods or food additives, he/she shall report such fact to the Commissioner of the Korea Food and Drug Administration or the Mayor/Do governor, as prescribed by Ordinance of the Ministry of Health and Welfare, and Article 25 of the Enforcement Rule provides that the person who has filed a report on manufacturing items under Article 22(6) of the Act shall submit a report on manufacturing items to the permission for business or the report-receiving authority within seven days before the commencement of manufacturing products, or within seven days after the commencement of manufacturing products, along with a statement on manufacturing method, food, etc. issued by a food sanitary inspection institution, and Article 26(2) of the Enforcement Rule provides that when a person who has filed a report on manufacturing items under Article 25 of the Enforcement Rule intends to extend the distribution period of the relevant items, he/she shall submit a report on manufacturing items to the permission or report authority along with a written report on extending the distribution period in attached Form 24.

Doz. The facts

(5) According to the evidence duly adopted and examined and the statement statement of the court below 1, 1, 2, 1, 2, 2, 1, 2, 4, 2, 1, 2, 2, 4, 2, 1, 2, 2, 4, 2, 1, 2, 2, 1, 4, 2, 2, 1, 1, 4, 2, 1, 2, 1, 4, 2, 1, 4, 2, 1, 1, 4, 2, 1, 2, 1, 1, 4, 1, 5, 1, 5, 1, 4, 1, 1, 2, 1, 1, 1, 3, 1, 1, 5, 1, 5, 1, 1, 1, 3, 1, 1, 1, 1, 1, 3, 2, 1, 5, 1, 2, 1, 1, 3

Article 12(1)(3)

Examining the above facts in light of the relevant provisions, the freezing fishery products of this case constitute food other than medicine and thus subject to the Food Sanitation Act's regulation. According to the food labelling standard, the freezing fishery products of this case constitute "food subject to labelling" under the above labelling standard, but it is sufficient to indicate only product name (name of content), business name, date of manufacturing, content, quantity, and method of keeping and handling pursuant to special provisions. However, products with simple processing without changing the storage quality of raw material products under Article 2 subparagraph 3 of the above labelling standard should be seen as their packaging date. According to Article 16 (1) of the Act and attached Form 4 of the Enforcement Rule of the same Act, those who intend to import food for sale or any other purpose are required to report importation of food to the Minister of Health and Welfare and the Commissioner of the Korea Food and Drug Administration at least 0 years after importation (including date of manufacturing). In light of the fact that the date of importing food products of this case can be seen as 20 years after importation of food products (the date of 20 years after importation of food products).

However, even if Defendant 1, a co-defendant of the court below, arbitrarily conducted the freezing and repackaging of the instant frozen fishery products through the Ariju company, it does not constitute food processing as follows, and therefore, it should be deemed that the date of work is the date of manufacture changed and entered in the original date of manufacture.

Meanwhile, Article 6 subparag. 4 of the Enforcement Rule) prohibiting false labelling of the date of manufacture or of distribution (Article 6 subparag. 4 of the Enforcement Rule) provides that not only the first person liable for labeling (i.e., the farmer's agricultural trial in this case), but also any person shall not thereafter make a false labelling, i.e., the date of manufacture and the distribution period. Thus, the above act by Co-Defendant 1 of the court below constitutes an indication of a false manufacturing date different from the facts prohibited by the Food Sanitation Act and the Enforcement Rule thereof.

이에 대하여, 피고인은 (상호 생략)수산의 의뢰로 아주상사에서 이 사건 냉동수산물을 새롭게 가공함으로써, ① 포장단위가 당초 7.5 ~ 22.5㎏에서 10 ~ 15㎏으로 변경되고, ② 손상, 파손부위를 제거하였으며, ③ 블록박스(필렛 여러 개가 겹겹이 쌓여 있는 형태)에서 I.Q.F.(개체 동결품, 즉 한 마리당 포장하는 것을 의미함)로 포장형태가 변경되었고, ④ 공소외 1이 이와 관련하여 품목 ‘제조’ 신고를 하지 않았다는 이유로 관할행정청으로부터 행정처분을 받았는바(서울중앙지방검찰청 2005형제113965 수사기록 제162면), 이는 식품의 ‘새로운 제조 또는 가공’ 행위가 있었던 것이고, 설령 ‘제조’에는 해당하지 않는다 하더라도 최소한 원료제품을 인공적으로 처리하여 저장성을 향상시키는 등 제품의 질을 높인 것에 해당하므로 적어도 식품의 ‘가공’에는 해당한다고 보아야 하므로, 그러한 가공행위가 최종 종료한 시점, 즉 아주상사의 재포장일을 제조연월일로 표시한 것은 적법하다고 주장한다.

(4) The term “processed food” in Article 3(1) of the Food War Act means the time when the manufacturing process of the above products is completed, i.e., products which need no more manufacturing or processing than packaging (the time the final process is completed in cases of products that go through a separate manufacturing process, such as spawn and disinfection after packaging). In other words, the term “processed food” in Article 3(1) of the same Act means the time when the processing of the relevant foods is no longer converted to any other form of food by processing until their sale to the final consumers. The term “processed food” in Article 3(28) of the same Act means the time when food ingredients are added to food raw materials, such as agricultural, forestry, livestock, and fishery products, or any other method, such as crushing or cutting, so that their original forms can not be identified, or if the foods are re-processed or re-processed into packages or melted with different ingredients, it means foods or food additives that cause changes in their original form or quality to the extent that they can not be identified by using such foods or food additives.

Therefore, it is difficult to view that there was any new processing act that may change the date of manufacture reported by an importer at the time of import in the process of purchasing the frozen fishery products of this case imported in the state of “cathers” in which the bones, cathers, internal organs, etc. were removed (trade omitted) from the raw body of fish, and selling them for aviation. Thus, the Defendant’s catch has no reason to see any mother or reason.

m. As to the sale of food with the display of the distribution term and the expiration of the distribution term

㈎ ‘유통기한’을 표시사항에서 제외한 취지

According to the aforementioned "label standards for food, etc." as seen above, the freezing fishery products of this case are "in the form of natural products imported, which are stored in packages, and which fall under food subject to labeling" (Article 3 subparagraph 1 (f). However, it is sufficient to indicate only "name of products, name of business, date of manufacture (date of packing), quantity of contents, method of keeping and handling" under the special cases of labeling (Article 6). (Article 6 subparagraph 4 of the above Act). The term "distribution period" refers to the maximum period during which consumers can sell, and the distribution period may be autonomously determined within the distribution period set according to the characteristics of the products. However, within the distribution period indicated, the food standards and standards set forth in the food code shall conform to the common standards and standards of food (Article 3 subparagraph 1 (f) of the Food Code. 17).

However, with respect to the purport of excluding mandatory labeling requirements for the term of distribution of “imported natural fishery products” under the “label on food, etc. labelling standards, which are stored in packages”, it is not clearly indicated in the Food and Drug Stabilization Agency, which is an official in charge of food and drug stability who publicly announced the “standards for food, etc. labelling.” However, determination as to whether to engage in new guidance, deterioration, or corruption is relatively easy, such as snow, ties, etc. even if the term of distribution is not indicated, and there are many cases in which the harvest of fishery products is seasonal and temporarily harvested, so it is necessary to keep a freezing that can be stored for a long period of time. As such, the operator is in charge of regulating the consumption through freezing and refrigerating and storing the freezing until it is used as direct consumption or processing raw materials, and in particular, it is difficult for the operator to autonomously keep the quality of fishery products at least after the expiration of the term of sale, even if it is indicated in the case of such raw products distribution.

㈏ 유통기한의 표시의무가 없음에도 불구하고 표시한 경우

As seen earlier, when interpreting that “standards for labeling food, etc.” is entrusted to the importer’s self-regulation as to the frozen fishery products of this case, there is a question as to whether the importer’s self-regulation should be viewed as a valid distribution period under the law even if the importer’s self-regulation is a distribution period.

However, even if there is no obligation to indicate the time limit for distribution under the law, the sales is facilitated by confirming the consumer's safety of the product, such as quality and new guidance, and accordingly, the importer may actively engage in business activities until the time limit for distribution is set. On the other hand, if the importer sells the product without indicating the time limit for distribution, the consumer is doubtful of the safety and quality of the product, and then the sales will decline rather than when the time limit for distribution is indicated. In light of the fact that the importer reduces the burden of business losses due to the expiration of the time limit for distribution, and the purport of the system for indicating the time limit for distribution, even if the importer does not have the obligation to indicate such time limit for distribution as the imported fishery products of this case, if the importer voluntarily indicates such food within the time limit for distribution, the importer must not only express his intention to sell the food within the time limit, but also deliver the food to the consumer, and thus, the importer's trust in the quality of the product within the time limit.

Therefore, there is a big difference in the effect of information delivered to consumers as such depending on whether the distribution deadline is indicated, and considering that the indication of the distribution deadline is intended to overcome the name of information between consumers and producers by providing accurate information on food to consumers, thereby protecting consumers, it shall be deemed that the effective distribution period is set under the law, even if it is not subject to the obligation to indicate the distribution deadline under the law, if it is voluntarily determined and indicated by the distribution deadline, and if it sells a product whose distribution deadline has expired, it shall be deemed that illegality is recognized.

In such a interpretation, if there is no obligation to indicate the distribution deadline, but the distribution deadline is re-expled after arbitrarily indicating the distribution deadline, it would be punished regardless of whether the quality and new guidance is maintained or not, and if the distribution deadline is not indicated from the beginning, it would result in no punishment. However, there is a reasonable reason for such discriminatory treatment as examined earlier.

However, in light of the legislative intent as seen earlier, if a person does not have the duty to indicate the distribution deadline, even after the expiration of the distribution deadline set voluntarily, if the new guidance and quality are guaranteed even after the expiration of the distribution deadline, and no special hazard is caused thereby, it does not go against the legislative intent as seen above. Therefore, it may be questionable whether the act of Defendant (employee) by extending the distribution deadline at will and selling new products is unlawful, as in the instant case. However, as already examined, the Act and the Enforcement Rule provide that if a person who reported the manufacture of products intends to extend the distribution period of the relevant product, he/she shall submit a report on the extension of the distribution period to the business permission or the report authority along with a written extension reason for the extension of the distribution period, and the "distribution period" in this case includes "distribution period", and even if the new guidance and quality were maintained, it was not possible to extend the distribution period for the purpose of causing waste of fishery resources, such procedures do not change the distribution period in this case.

Ultimately, (Trade Omitted) The act of selling the frozen fishery products of this case to the aviation after the expiration of the original distribution period, while Defendant 1, an employee of the court below, stated the distribution period at the time of purchasing the frozen fishery products of this case from the deaf court, while keeping the freezing fishery products of this case in the warehouse in relation to the defendant's business, constitutes a crime of violating the Food Sanitation Act that sells the food with the expiration of the distribution period by falsely indicating the distribution period.

(v)a determination;

Thus, the date of manufacturing the freezing fishery products of this case is different from the facts, and the period of time indicated on the frozen fishery products of this case has passed, and the facts charged of this case are found guilty as all of the charges of this case, which have been distributed after arbitrarily extending it, so the defendant's assertion

3. Conclusion

Therefore, pursuant to Article 364(2) and (6) of the Criminal Procedure Act, the part of the judgment of the court below against the defendant shall be reversed, and the following judgment shall be rendered after pleading.

The summary of the facts of the crime and evidence presented by this court is as follows: (a) all of the facts of the judgment of the court below stated in the facts of the crime 1-B as "fishery products"; (b) 1-B 1-B 1 ; (c) and 6-B 1 ; and “not later than December 9, 2005,” respectively, by "not later than May 27, 2005; and (d) 2.450,000 won” in the 7-B ; and (e) 24,290,000 won are the same as the stated in each corresponding column of the judgment of the court below; and (e) 369 of the Criminal Procedure Act are cited as it is.

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 79, 77 subparag. 1, and 11(1) and (2) of the former Food Sanitation Act (amended by Act No. 7374 of Jan. 27, 2005; hereinafter the same shall apply), Articles 6(1)4 of the former Enforcement Rule of the Food Sanitation Act (amended by Ordinance No. 324 of Jul. 28, 2005; hereinafter the same shall apply), Articles 79, 77 subparag. 5, and 31(1) of the former Food Sanitation Act, Article 42 of the Enforcement Rule of the former Food Sanitation Act, and subparagraph 2(m) of attached Table 13 of the Enforcement Rule of the Food Sanitation Act (selected)

1. Aggravation for concurrent crimes;

The former part of Article 37 and Article 38 (1) 2 of the Criminal Act (the punishment specified in Article 38 (1) 2 of the Criminal Act shall be aggravated)

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

As to the crime No. 1 (A) of the judgment of the court below, the crime of this case is that the defendant's joint defendant 1, who is an employee of the court below, expressed the date of manufacture and distribution differently from the facts, and actually did not sell it during the general market and provided almost free of charge only to the employees restaurant of the affiliated company. Notwithstanding the fact that the defendant does not have the duty to indicate the distribution deadline in this case, the defendant's marking of the distribution deadline in fisheries (trade name omitted) requires the defendant to indicate the distribution deadline in the (trade name omitted) fishery for the management of his own products. The defendant's importation of the product by setting the distribution deadline of two (2) years in practice after receiving the request of the Korea Fisheries Research Institute for the defendant's own products. Since it was not clearly revealed that there was no special motive or reason for the defendant to display the date of manufacture and distribution falsely, it is difficult to say that the defendant's first sale of the food products and the first time period of sale of the product was newly determined by joint defendant 1's employer.

Judges Kim Yong-soo (Presiding Judge)