(영문) 대법원 2015.5.28. 선고 2015도2669 판결

The conviction part of the judgment of the court below against the Defendants shall be reversed, and this part of the case shall be remanded to the Panel Division of the District Court.

Reasons

The grounds of appeal are examined.

1. As to the ground of appeal on the false indication of distribution period

Examining the evidence duly adopted and examined by the lower court and the first instance court, it is justifiable to find the Defendants guilty of having falsely indicated the distribution period equivalent to approximately KRW 80,562 g of the total quantity of livestock products, approximately KRW 568,548,658 of the total value of the supply of the livestock products by means of purchasing an import swine mosing moscul from January 2013 to May 2014 among the facts charged in the instant case, as indicated in its reasoning, using the method of indicating the date of manufacturing and the distribution period from the date of manufacturing to the 12-month period. In so doing, the lower court did not err by failing to exhaust all necessary deliberations or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

2. As to the ground of appeal on the sales of the livestock products with expiration of the distribution period

A. In a criminal trial, the conviction of guilt ought to be based on evidence with probative value, which leads a judge to have the conviction that the facts charged are true beyond a reasonable doubt. Therefore, in a case where the prosecutor’s proof did not reach the degree to have such conviction, the determination ought to be based on the Defendant’s benefit even if there was a suspicion of guilt (see Supreme Court Decision 201Do15767, Feb. 13, 2014).

B. As indicated in its reasoning, the lower court found the Defendants guilty on the part of the facts charged, that the Defendants sold livestock products, the distribution period of which exceeds KRW 52,420 g, the total quantity of which exceeds KRW 52,420 g, and the total value of which exceeds KRW 369,962,610 among the total quantity of which was 65 gs of customers from January 2003 to May 2014, the Defendants sold the total quantity of which was 90,046 g, and the total value of which was 635,479,910.

C. As to this part of the facts charged, the first instance court deemed that the period of at least 10 days was spent from the date the Defendants purchased the imported frozen wholesale slaughter to the retail store through the order and delivery process, and recognized that the Defendants sold the livestock products, the distribution period of which arrives within 10 days from the date the Defendants bought, after the lapse of the distribution period. The lower court also accepted such standard and found the Defendants guilty of the part 52,420 km of the quantity, the distribution period of which comes within 10 days from the date the Defendants purchased.

Examining the evidence duly adopted and examined by the lower court and the first instance court, the lower court’s determination that the Defendants had already passed the expiration of the period of distribution at the time of sale as to the livestock products whose expiration date arrives within 10 days from the date of purchase by the Defendants is justifiable in itself. As such, the lower court should examine whether the said standards are satisfied.

(1) First, it is difficult for the court below to accept the expiration date of the distribution period of the regratulation sold by the Defendants as is specified in the attached Form 3 of the judgment below (hereinafter referred to as the “instant regrat sheet”).

According to the records, the court below recognized the expiration date of the distribution period of the conciliation table of this case based on the data received by the Defendants by providing the head of Seoul Customs Office with the distribution identification number (B/L number of the import declaration certificate) of the import freezing regring (hereinafter “G”) purchased from G Co., Ltd. in the course of investigation. However, according to the import freezing regring certificate issued by the Defendants purchased by the Defendants, the court below acknowledged the fact that the Defendants were loaded and imported as the unit of packages of not less than 22 tons next to the import freezing regring boxes and the date of slaughter and manufacture was not set as a certain date but over a period of about 1 to 4 months, and on the other hand, the distribution period of the import freezing regring was set two years from the date of packing and packed.

According to the above facts, although the period of circulation of the imported freezing machines purchased by the Defendants appears to be able to vary for each package owner (e.g., the expiration date of distribution was indicated on January 23, 2013, but the pertinent certificate of import declaration filed on January 293 of the public trial records was followed by the pertinent certificate of import declaration filed on January 24, 2011 to February 19, 201. Thus, the distribution period is 3 years from January 23, 201 to 10, 201, and 2 years from February 18, 2013. It is sufficient that the Defendants purchased 2 years from the 10th day to February 18, 2013, and the 10th day from January 23, 2013 to the 10th day from the 20th day from the 20th day from the 10th day to the 10th day from the 20th day from the 10th day from the 20th day to the 17th day from the 20th day from the 13th day. day from the 2. day. day. day. day from the 2. day. day. day of the 2. day. day. day.

(2) On the other hand, if the above criteria for determination are followed, it cannot be deemed that the sale was made after the expiration of the distribution period, which was purchased 10 days prior to the expiration date specified in the pertinent certificate of import declaration, even prior to the expiration date, in the case of the revolving Nos. 14, 29, 32, and 33 of the instant table of the reorganization order. Nevertheless, the reasoning that the lower court recognized the expiration date as the sale after the expiration of the distribution period is difficult to obtain.

(3) In addition, according to G’s customer director or transaction statement, the Defendants purchased most of the reeds at the price of KRW 3,500 per km, and some of the Defendants purchased at the price of KRW 5,000 per km, which is higher than that of the arm’s length price. However, the part that the Defendants purchased certain products at the price higher than that of the arm’s length price after the expiration of the distribution period is contrary to trade norms. Nevertheless, it is difficult to understand that the lower court concluded that the pre-paid distribution period has already lapsed without closely examining this part as to this part that the Defendants sold the products.

D. If so, the lower court should have deliberated more on the expiration date of the import freezing machines purchased by the Defendants, unlike the slaughter and packing date of the import freezing machines by the import declaration certificate, and further on whether there are special circumstances or grounds to recognize it differently, and on whether the Defendants purchased the import freezing machines at the price exceeding 5,000 won per kg, the normal price, and on the credibility of the transaction statement in the transaction statement, and should have determined the expiration date of the import freezing machines purchased by the Defendants. Based on this, the lower court should have determined whether to recognize this part of the facts charged.

E. Nevertheless, the lower court convicted all of the facts charged solely on the grounds stated in its reasoning. In so doing, the lower court erred by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, or by misapprehending the legal doctrine on the degree of probative value of evidence to be found guilty in a criminal trial, thereby adversely affecting the conclusion

3. Scope of reversal

Of the judgment of the court below, the part of conviction for the sale of livestock products after the expiration of the distribution period as to the defendants should be reversed. Since the above reversed part and the remaining criminal facts of the defendants convicted by the court below should be sentenced to a single punishment in concurrent crimes under the former part of Article 37 of the Criminal Act, the part of the judgment of the court below

4. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the guilty portion of the judgment below against the Defendants is reversed, and this part of the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.