The meaning of "consumer" under Article 16 (1) of the former Tobacco Business Act (i.e., a person who purchases tobacco and uses it finally) and whether a person who purchases tobacco, such as tobacco retailers, and sells it to another person is included (negative)

Article 12(1) of the Constitution of the Republic of Korea; Article 1(1) of the Criminal Act; Articles 12(1) and (2), 13(1), 16(1), and 27-3 subparag. 1 (see current Article 27-2(2)1) of the former Tobacco Business Act (Amended by Act No. 12269, Jan. 21, 2014);

Supreme Court Decision 2015Do18765 Decided November 24, 2016 (Gong2017Sang, 51)

Defendant 1 and one other

Defendants

Attorney Seo Jae-gu

Incheon District Court Decision 2015No361 decided May 1, 2015

The part of the lower judgment against Defendant 1 is reversed, and that part of the case is remanded to the Incheon District Court. Defendant 2’s appeal is dismissed.

The grounds of appeal are examined.

1. Judgment on Defendant 1’s grounds of appeal

In order to protect the freedom and rights of individuals from the arbitrary exercise of the State’s penal authority, the interpretation of penal provisions should be strict, and the excessively expanded or analogical interpretation of the meaning of an express provision to the disadvantage of the defendant is not permitted as it violates the principle of no punishment without the law (see, e.g., Supreme Court Decisions 2008Do6512, Jan. 15, 2009; 2013Do4503, Sept. 24, 2014).

Article 16(1) of the former Tobacco Business Act (amended by Act No. 12269, Jan. 21, 2014; hereinafter “ Tobacco Business Act”) provides that “any person who intends to operate a tobacco retail business (referring to a business directly selling to consumers) shall obtain a designation as a retailer from the head of the competent Si/Gun/Gu having jurisdiction over the location of the place of business.” Article 12(2) of the Tobacco Business Act provides that “any person other than a retailer shall not sell tobacco to consumers.” Article 27-3 subparag. 1 of the Tobacco Business Act provides that “any person who sells tobacco to consumers without being designated as a retailer in violation of Article 12(2) shall be punished by a fine not exceeding five million won.” Article 12(1) of the Tobacco Business Act provides that “any manufacturer of tobacco manufactured by him/her, any person who intends to register his/her head office or import and sell tobacco imported from foreign countries with the head office of the competent Special Metropolitan City Mayor or the head office of the competent local government (referring to a person who intends to sell tobacco imported from other person under Article 13(1).).

A consumer generally refers to a person who consumes goods. In addition, the Tobacco Business Act clearly designates the other party to the sale of tobacco retail business as a “consumer” and the other party to the sale of tobacco retail business as a “other wholesaler or retailer.” If the scope of “consumer”, who is the other party to the sale of tobacco retail business, is not limited to a consumer at the final stage in the distribution structure of the tobacco business, but includes other wholesalers or retailers, it is deemed that there is no restriction on the scope of the other party to the sale of tobacco retail business. Ultimately, Article 16(1) of the Tobacco Business Act does not stipulate the other party to the sale as a “consumer”.

Examining the contents of the provisions of the Tobacco Business Act (Article 16(1) of the Tobacco Business Act, in particular, limits the scope of tobacco retail business in addition to the phrase “direct” in front of a consumer), and the ordinary meaning of a consumer in light of the aforementioned legal principles, “consumer” under Article 16(1) of the Tobacco Business Act refers to a person who purchases, uses, or finally uses, tobacco. Here, deeming that the term “consumer” includes a person who engages in a business of purchasing and selling tobacco, such as tobacco retailers, to a “consumer” includes a person who purchases and sells such tobacco to another person, is an excessively expanded interpretation or analogical interpretation of the meaning of the “consumer” to the disadvantage of

Nevertheless, under the premise that “consumers” under Article 16(1) of the Tobacco Business Act includes persons who engage in a business of purchasing and selling tobacco to others, such as tobacco retailers, the lower court determined that the “business of selling tobacco to other retailers” also constitutes a tobacco retail business. In so determining, the lower court erred by misapprehending the legal doctrine on tobacco retail business subject to designation as retailers under the Tobacco Business Act, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

2. Judgment on Defendant 2’s appeal

Defendant 2 appealed against the judgment of the court below, but the appellate brief was not submitted, and the appellate brief did not contain any description of the grounds for objection.

3. Conclusion

Therefore, the part of the lower judgment against Defendant 1 is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. Defendant 2’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-dae (Presiding Justice)