2012 Highest 7853 Violation of the Unfair Competition Prevention and Trade Secret Protection Act, Table

- Violation of the Fair Transactions in Advertising Act, fraud

A person shall be appointed.

Kim Jat (Lawsuits) and Park Jong-dae (Trial)

Attorney A -

May 2, 2013

Defendant shall be punished by a fine of KRW 15 million.

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

The provisional payment of the amount equivalent to the above fine shall be ordered.

Of the facts charged in this case, the charge of fraud is acquitted.

Criminal facts

On April 27, 2011, the defendant advertisedd products manufactured as "Fu ginseng (Lin capital)" in a daily newspaper, such as "Fu ginseng (Lin capital)" in the head office of the Dong-gu Kimpo-si, Kimpo-si, which is operated by the defendant, on the ground of the newspaper, on April 27, 201, the above red ginseng (Lin capital) was recorded as "the total of 6mg/g/g high portion 65m in the export commemorative for each Dong-gu, China, as shown in the attached advertising photographs in the newspaper," "Seman-si, Jin-si, Kimpo-si, the total of which was 6mg/g high portion 6mg/ g high portion, 10 research experience of 30 years or more in the field of red ginseng (Lin capital) or 30 years or more in the former three-year experience in the Republic of Korea," and "Gujin-si, etc., Korea," "D, and others."

However, the above red ginseng content was merely about 0.64mg/g, and it was merely about 10% of the above advertisement. It did not have exported it to the Dong, a Chinese state enterprise. D, E, etc. merely worked as a simple worker in the Korean Ginseng Corporation, and thus did not have knowledge and ability to guarantee the quality of the product.

From that time until February 6, 2012, the Defendant advertised in daily newspapers as shown in the “List of Newspaper Advertisement” as shown in Annex B, and sold the above red ginseng (htp: / www. / www. 0000) on the Internet homepage (htp: / 0000), the F Internet homepage (kr. / 000000) of the Co., Ltd., G Internet homepage (htp: / 00000com).

As a result, the Defendant sold goods by advertising to mislead consumers into the quality and contents of goods, and at the same time, by false or exaggerated advertising that might deceive consumers, the Defendant committed an act that could undermine fair trade order.

Summary of Evidence

1. Legal statement of the witness H;

1. Each prosecutor's protocol of examination of the accused (part of the protocol);

1. Each police suspect interrogation protocol against the accused (part of the suspect interrogation protocol);

1. Statement of the police statement concerning I;

1. Current status of Internet advertisements, evidential materials, the current status of newspaper advertisements and evidential materials;

1. Materials related to the false research career, and ingredients below the content;

1. A report on investigation (the fact that he/she is aware of the content of advertisements containing Jinno-Lind Contents and advertisements);

Application of Statutes

1. Article applicable to criminal facts;

inclusive, Articles 18(3)1 and 2 subparag. 1(f) of the Unfair Competition Prevention and Trade Secret Protection Act and Article 17 subparag. 1 and Article 3(1)1 of the Act on Fair Labeling and Advertising collectively

1. Commercial competition;

Articles 40 and 50 of the Criminal Act

1. Selection of punishment;

Selection of Fines

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

Parts of innocence

1. In addition to the violation of the Unfair Competition Prevention and Trade Secret Protection Act due to false or exaggerated labeling and advertisement as stated in the judgment by the defendant, the container of the product is similar to the "red red ginseng of the articles of incorporation of the Korea Ginseng Corporation" in addition to the violation of the Unfair Competition Prevention and Trade Secret Protection Act due to the defendant's criminal facts, the container of the product is used in yellow color lids, the package is used in yellow color, the package is red, the lower verification color, the center is included in ginseng design, and the product is manufactured as "red red ginseng (the capital) with six-year red ginseng near the name of the product" as stated in the judgment, and is charged with the crime of violation of Article 18 (3) of the Unfair Competition Prevention and Trade Secret Protection Act.

In light of the following circumstances acknowledged by the record, i.e., the Defendant’s red ginseng product photographer at the center of the screen as shown in the attached advertising photo, and the container is marked with the product sign “Fririju (Link)” and there is no other sign, and the part of the above advertising picture was used in the door to the effect that the quality of the advertising product is guaranteed by the employees working in the Korea Ginseng Corporation. However, in the attached advertising photo, it is difficult to see that the phrase “the articles of association” was used as a product mark or business mark with the source identification function, and there is no other evidence to acknowledge it differently ( even if the container of the product itself is insufficient to see that it is similar to the red ginseng, such fact alone does not constitute a well-known dilution mark).

Thus, the above facts charged should be pronounced not guilty under the latter part of Article 325 of the Criminal Procedure Act because it constitutes a case where there is no proof of a crime. However, as long as it is found guilty of the facts constituting a crime in relation to such a crime, the judgment of

2. Fraud;

A. Summary of the facts charged

The Defendant advertised 'six-year red ginseng' in a daily newspaper, etc., on the ground that "the total of 6mgg1 and Rab1 for each Dong in China," "6mg/g high g 65%," "the next red ginseng sector," "the 10-year experience of 10 persons who have worked in the Red ginseng sector and for 30 years or more, and "the general manager manager for the manufacture of red ginseng" of the former Red ginseng Corporation, and "D, E, etc., sent a false advertisement, stating "the brief records of development research" of the Red ginseng Corporation (HL) for six-year old years.

However, the facts are that the company B did not export the "Friju (Lujun) Red ginseng (Lujun)" to Dong, a national enterprise of China, and the product "Seno Gari (Lusan capital)" was merely about 0.64 g/g, so it was merely about 10% of the above advertisement, and D et al. written as the research team was merely a mere functional worker and was therefore without knowledge and ability to guarantee the quality of the product.

Nevertheless, the Defendant, from that time until February 6, 2012, advertised the same contents in the daily newspapers as shown in [Attachment B] List of Newspapers, and, on the Internet homepage (htp: / www. / 000,com) of the Co., Ltd., F Internet homepage (htp: / 000, co., Ltd.) and G Internet homepage (http: / www. / www. 000,000). From October 18, 2011, the Defendant received KRW 184,80,000 from the victim'sJ for the purchase price, and received KRW 180,000 from the victim'sJ to 00,000, KRW 2615,265,20,000 from the Defendant's bank account under the name of the Co., Ltd., Ltd. (No. - 184,000; - No. 265, Feb. 6, 2000).

B. Determination

The deception as a requirement for fraud refers to all affirmative and passive acts that have to observe each other in the wide sense of trust and good faith in the transactional relationship, causing a mistake to the other party, and the essence of fraud does not require that real property damage would occur to the other party. In general, the mere exaggeration in the promotion of goods, advertisement, or false accusation would be lack of deception as long as it may be acceptable in light of the general commercial practice and the good faith principle. However, if specific facts about important matters in the transaction are falsely notified in a manner that would be subject to criticism in light of the duty of good faith in the transaction, it constitutes deception in fraud beyond the limits of exaggeration and false advertisement (see Supreme Court Decision 91Do2994 delivered on September 14, 1992, etc.).

According to the records, the defendant advertised "Friju (Lujun)" on the ground, such as daily newspaper, etc. of "Friju," and published "Friju (Luju)" on the export commemorative for each Dong of China with "6mg1 and Rb1," "6mg/g high 7m high 65%," and "Friju (Luju) made 10 persons who have worked in the field of red ginseng for not less than 30 years, and "Friju (Luju) made of 10 persons who have worked in the field of red ginseng," and "Friju (Luju) made of 10 persons who have worked in the field of red ginseng," and "Friju (Lujun) made a false or false advertisement."

If the defendant's above act was falsely notified of material facts in light of his duty of good faith to the extent that it would be criticized, and as to whether it constitutes fraud beyond the limit of false advertising, the following circumstances acknowledged in light of the records of this case, namely, the defendant's price of red ginseng (the capital) equivalent to 10.25% of red ginseng concentration, is below 8 to 9 times compared with the price of the president of the Korea Ginseng Corporation in which 100% of red ginseng concentration is 10% (where red ginseng concentration is similar to 10.25%, it seems that the Korean Ginseng Corporation's products are high 2 to 3 times high, and it is hard to recognize that the above red ginseng product's products' products' products' products' products' products' products' products' products' products' products' products' products' products' products' products' products' products' products' products' products' products' products' products' products' products' products' products' products' products' products' products' products' products' products' products' products' products products' products' products' products' products' products products' products' products' products products' products' products' products' products' products' products' 10% and 5% of red ginseng.

Therefore, the above facts charged constitute a case where there is no proof of crime, and thus, is acquitted under the latter part of Article 325 of the Criminal Procedure Act

Judges Cho Jung-man