[1] Whether the phrase “sale outside the factory space (use vehicle)” which is punished under Articles 46 subparag. 10 and 39(1)2 of the former Petroleum and Petroleum Substitute Fuel Business Act is limited to the elements of a crime by mechanical operation, such as measuring instruments (negative) and the purport of the punishment provision (negative)

[2] In a case where the Defendant, a petroleum retailer, sent the light oil of a tank to a boiler and increased the volume of average of 32°38°C above the international standard temperature of 15°C, and then sold it to customers with the volume of average of 270°C per 20 liter, and was prosecuted for violating the former Petroleum and Petroleum Substitute Fuel Business Act, the case holding that the lower court erred by misapprehending the legal doctrine as to the interpretation of the act of selling petroleum below the quantity in violation of the same Act on the ground that the Defendant’s act of selling petroleum by artificially heating the light oil falls under “an act of selling petroleum below the quantity and below the quantity,” on the ground that the Defendant’s act of selling petroleum by artificially heating the light oil is included in “an act of selling petroleum below the quantity,” etc.

[1] Articles 46 subparag. 10 and 39(1)2 of the former Petroleum and Petroleum Substitute Fuel Business Act (amended by Act No. 13085, Jan. 28, 2015) provide for “the act of selling petroleum below the prepaid quantity beyond the prepaid one,” and do not limit the means of such act to the elements of a crime caused by mechanical operation, such as measuring instruments. Therefore, the purpose is to punish cases where petroleum sellers, etc. sell petroleum below the prepaid one out of the prepaid one by other methods, such as setting a different error in measuring instruments or manipulating the indication thereof.

[2] In a case where the Defendant, who is a petroleum retailer, was charged with violating the former Petroleum and Petroleum Substitute Fuel Business Act (amended by Act No. 13085, Jan. 28, 2015; hereinafter “former Petroleum Business Act”) on the ground that the Defendant’s act of selling the 10-6-2-3-1-2-38-2-5-2-5-2-5-2-3-5-2-5-3-5-3-5-2-5-3-5-3-5-3-5-5-5-7-7-7-7-10-7-7-10-7-7-7-7-7-10-7-7-10-7-7-7-7-5-7-7-7-10-7-7-7-5-7-7-7-5-7-7-5-7-5-7-7-10-7-5-7-5-7-5-7-7-7-7-7-7-7-7-5-7-7-7-3-7-3-3-3-5-5-5-3-3-3-3-3-3-3-5-

[1] Articles 39(1)2 and 46 subparag. 10 of the former Petroleum and Petroleum Substitute Fuel Business Act (Amended by Act No. 13085, Jan. 28, 2015); / [2] Articles 39(1)2 and 46 subparag. 10 of the former Petroleum and Petroleum Substitute Fuel Business Act (Amended by Act No. 13085, Jan. 28, 2015); Articles 39(1)3 and 46 subparag. 10 of the former Petroleum and Petroleum Substitute Fuel Business Act (Amended by Act No. 14774, Apr. 18, 2017); Articles 42-4 and 45(8)10 of the former Enforcement Decree of the Petroleum and Petroleum Substitute Fuel Business Act (Amended by Presidential Decree No. 26316, Jun. 15, 2015); Article 28 subparag. 25(1)10 of the former Enforcement Decree of the Act (Amended by Act No. 263715, Jan. 27, 2071)

Defendant

Prosecutor

Attorney Park Hun-hoon

Daegu District Court Decision 2017No1498 Decided November 17, 2017

The part of the lower judgment against the violation of the Petroleum and Petroleum Substitute Fuel Business Act is reversed, and that part of the case is remanded to the Daegu District Court Panel Division. The Prosecutor’s remaining appeal is dismissed.

The grounds of appeal are examined.

1. Violations of the Petroleum and Petroleum Substitute Fuel Business Act

A. Of the facts charged in the instant case, the summary of the violation of the Petroleum and Petroleum Substitute Fuel Business Act is as follows: “The Defendant: (a) was a petroleum retailer; (b) was prohibited from selling petroleum and petroleum substitute fuel beyond the usage error of measuring instruments; (c) from January 1, 2015 to March 9, 2015, the Defendant sent the transit of the transit tank No. 4 from around January 1, 2015 to the boiler, thereby raising the volume of the average of 32°38°C above the international standard temperature; and (d) sold the volume of the petroleum and petroleum substitute fuel by selling it to the customers without name.”

B. The lower court found the Defendant guilty on the following grounds: ① (a) Articles 46 subparag. 10 and 39(1)2 (hereinafter “instant penal provision”) of the former Petroleum and Petroleum Substitute Fuel Business Act (amended by Act No. 13085, Jan. 28, 2015; hereinafter “former Petroleum Business Act”) aim at punishing petroleum sellers, etc. to punish cases where the amount of petroleum actually sold by other methods, such as setting an error in measuring instruments or manipulating the indication thereof, falls short of the quantity of petroleum measured in measuring instruments beyond the amount of petroleum measured in measuring instruments; and (b) the act as stated in the instant facts charged cannot be deemed as accurately included in “the act of selling petroleum below the quantity of petroleum below the quantity of petroleum measured.” (c) Articles 46 subparag. 10 and 39(1)2 of the former Petroleum Business Act (amended by Act No. 13085, Jan. 28, 2015; hereinafter “instant penal provision”) did not exist in the former Petroleum and Petroleum Substitute Business Act.

C. The key issue of the instant case is whether the “sale by heating petroleum to increase volume” constitutes “sale below the fixed quantity” as prescribed by the former Petroleum Business Act.

D. The provisions of the relevant legislation are as follows.

1) Article 42-4 of the former Enforcement Decree of the Petroleum and Petroleum Substitute Fuel Business Act (amended by Presidential Decree No. 26316, Jun. 15, 2015; hereinafter “former Enforcement Decree of the Petroleum Business Act”) prohibits “the act of selling petroleum and petroleum substitute fuel beyond the usage tolerance prescribed by Presidential Decree,” and Article 42-4 of the former Enforcement Decree of the Petroleum and Petroleum Substitute Fuel Business Act (amended by Presidential Decree No. 26316, Jun. 15, 2015; hereinafter “former Enforcement Decree of the Petroleum Business Act”) provides that “the use error of measuring instruments pursuant to the Enforcement Decree of the Act on the Measurement of

2) Article 23(2) of the former Enforcement Decree of the Measures Act (amended by Presidential Decree No. 28471, Dec. 12, 2017; hereinafter the same) provides that “The value of 1.5 times the maximum permissible error determined in the standards for the verification of measuring instruments under Article 23(2) of the Act shall be determined by Presidential Decree.” Article 23(2) of the former Measurement Act (amended by Act No. 14661, Mar. 21, 2017; hereinafter the same shall apply) provides that the standards for the verification shall be determined and publicly notified by the Minister of Trade, Industry and Energy. Article 20(2) of the former Enforcement Decree of the Measures Act provides that detailed matters concerning the standards for the verification shall be determined and publicly notified by the Minister of Trade, Industry and Energy. Article 20(2) of the former Enforcement Decree of the Ministry of Trade, Industry and Energy’s Notice No. 2014-282, Jan. 14, 2012>

3) Article 45(8)5 of the former Enforcement Decree of the Petroleum Business Act provides that the authority to verify whether a petroleum retailer complies with the prohibition of selling below the fixed quantity shall be entrusted to the Korea Petroleum Quality & Distribution Authority. Article 3(4) of the Regulation on Petroleum Distribution Inspection, which is the regulation of the Korea Petroleum Quality & Distribution Authority, provides that “The standard of determining the act of selling below the fixed quantity under Article 39(1)2 of the Act is to verify the act of selling below the fixed quantity under Article 39(1)2 of the Act, and the scope of error in use under [Attachment 17] of the Enforcement Decree of the Act on Measurement of Article 42-4 of the Decree.”

E. As to the punishment provision of this case, the following can be determined.

1) The penal provision of this case only provides for “the act of selling petroleum below the net quantity outside the user car” and does not limit the means to the elements of the crime caused by mechanical operation, such as measuring instruments. Therefore, the purpose of the penal provision is to punish petroleum sellers, etc. who sell petroleum below the net quantity out of the user car of measuring instruments by any other means, such as creating an error in measuring instruments or manipulating the indication thereof.

2) Comprehensively taking into account the aforementioned statutory provisions systematically, “The act of selling petroleum below the net quantity” under the penal provision of this case refers to “the act of selling petroleum below the net quantity by exceeding 1.5 times the maximum permissible error in the standard for authorization” and “the act of selling petroleum below the net quantity” refers to “0.75% of the maximum permissible error,” and “the standard temperature for weighing the net quantity of petroleum” refers to 15°0.75% of the maximum permissible error. The standard temperature for weighing the net quantity of petroleum is 32°38°C. In a case where the Defendant sells light 20 liter under the circumstance that the Defendant changed the temperature conditions into 15°C, the above diesel again changed into 20 cc.

3) However, according to the examination report of the Institute, in general, the volume of light oil increases by 0.08 to 0.09% on the basis of 15°C at the standard temperature. The Defendant: (a) installed a rapid heating system in the gas station’s place of business; (b) sold to consumers the air to which the volume was increased by connecting the heat through the heating tank (using the heating) through 4 tanks; (c) the temperature of light sample collected from 4 parts, such as the Defendant’s liquor abandonment, was 32°38°C; and (d) the temperature of light sample collected from 50°80 minutes at the upper temperature to change the conditions to the nearest temperature to 15°C; and (e) after leaving approximately 50 minutes to 80 minutes at the upper temperature, the Defendant confirmed that all of the results measured from 22°25°C at the 200 liter’s place of business falls short of 2100 cm per volume.

4) Therefore, the Defendant’s act of selling petroleum by artificially heating the volume of transit is included in “an act of selling petroleum under the fixed quantity beyond the used truck.”

F. Upon the amendment of the former Petroleum Business Act on January 28, 2015, Article 39(1)3 newly established “an act of selling petroleum and alternative fuel by unfairly increasing the volume of petroleum and alternative fuel, such as human heat,” and came into effect from July 29, 2015. As seen earlier, the requirements of the instant penal provision, which was delegated in sequence in subordinate statutes, may be deemed to have been clearly defined by the law, and even if such penal provision was newly established, the act indicated in this part of the facts charged, which was the act at the time of the enforcement of the former Petroleum Business Act, may be punished as the instant penal provision.

G. Nevertheless, the lower court rendered a not-guilty verdict on this part of the facts charged solely on the grounds as indicated in its reasoning. In so determining, the lower court erred by misapprehending the legal doctrine on the interpretation of the act of selling below the quantity in breach of the former Petroleum Business Act, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal

2. Fraudulent part

For the reasons indicated in its holding, the lower court dismissed the prosecutor’s appeal regarding fraud among the facts charged in the instant case. Examining the reasoning of the lower judgment in light of the record, the lower court did not err 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

3. Conclusion

The part of the lower judgment against the violation of the Petroleum and Petroleum Substitute Fuel Business Act is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Prosecutor’s remainder of appeal is dismissed. It is so decided as per Disposition by the assent

Justices Jo Hee-de (Presiding Justice)