[1] Whether it is necessary to place an indication of origin under the Foreign Trade Act, considering the processed agricultural products produced in North Korea as imported agricultural products (affirmative)

[2] The case holding that the country of origin of the situation mushroom extraction produced in North Korea constitutes an indication that is likely to cause a false indication or confusion as to the country of origin

[1] In full view of the relevant provisions of the Enforcement Decree of the Agricultural Products Quality Control Act, the Foreign Trade Act, the Enforcement Decree thereof, the Inter-Korean Exchange and Cooperation Act, and the Enforcement Decree thereof, in relation to inter-Korean trade, North Korea considers North Korea as a foreign country with no sovereignty of the Republic of Korea and treat them as equivalent to the import and export goods. As such, processed agricultural products produced in North Korea shall be deemed as imported agricultural products, and thus, an origin

[2] The case holding that the country of origin of the situation mushroom extraction produced in North Korea falls under the indication that is likely to cause a false indication or confusion as to the country of origin

[1] Article 15 of the former Agricultural Products Quality Control Act (amended by Act No. 8852 of Feb. 29, 2008); Article 24 of the Enforcement Decree of the Agricultural Products Act (amended by Presidential Decree No. 20677 of Feb. 29, 2008); Article 26 of the Inter-Korean Exchange and Cooperation Act; Article 23 of the former Foreign Trade Act (amended by Act No. 8852 of Feb. 29, 2008) / [2] Article 15 of the former Agricultural Products Quality Control Act (amended by Act No. 8852 of Feb. 29, 2008); Article 24 of the Enforcement Decree of the Agricultural Products Quality Control Act (amended by Presidential Decree No. 20677 of Feb. 29, 2008); Article 26 of the Inter-Korean Exchange and Cooperation Act; Article 23 of the former Foreign Trade Act (amended by Act No. 8852 of Feb. 29, 2008)

Defendant

Prosecutor

Freeboard

Daegu District Court Decision 2007Gohap1559 Decided October 18, 2007

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 1,000,000.

When the above fine is not paid, the defendant shall be confined in a workhouse for the period calculated by converting 50,000 won into one day.

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

1. Summary of grounds for appeal;

According to the Inter-Korean Exchange and Cooperation Act, it is reasonable to strictly distinguish South Korea and North Korea, and to interpret North Korea as a separate country, not a domestic but a trade or a trade partner, except as otherwise provided for in the above Act. The court below erred by misapprehending the legal principles, which affected the conclusion of the judgment, on the ground that the court below acquitted the Defendant of this part of the facts charged on the ground of the original judgment.

2. Determination:

A. Summary of the facts charged

피고인은 건강보조식품 제조업을 하는 자인 바, 원산지의 표시를 허위로 하거나 이를 혼동하게 할 우려가 있는 표시를 하는 행위를 하여서는 아니됨에도 불구하고, 2004. 5.경부터 2005. 5. 3.경까지 사이에 경산시 남산면 (주소 생략) 소재 피고인 운영의 (상호 생략)내츄럴에서, ‘상황버섯 린테우스엑스’라는 건강보조식품을 생산하면서 제품 포장지의 성분란에 ‘상황버섯추출액(국내산 : 북한)’이라고 표기한 후 위 제품 4.8kg들이 2,100박스, 2.4kg들이 2,250박스 시가 합계 금 177,246,000원 상당을 소비자들에게 판매하고, 4.8kg들이 366박스, 2.4kg들이 1,020박스 시가 합계 금 59,517,000원 상당을 같은 장소에 보관하여 농산물의 가공품에 대하여 소비자들에게 원산지를 혼동하게 할 우려가 있는 표시를 하였다.

B. The judgment of the court below

According to the Agricultural Products Quality Control Act and the Enforcement Decree thereof, in cases of domestic agricultural products, etc., the lower court provides for matters concerning trade, such as bringing in and out of the goods, etc. between South Korea and North Korea, including the indication of origin, and in cases of imported agricultural products, the indication of origin and the content of the raw materials used for the processed agricultural products (including those processed in Korea) in accordance with the method prescribed by the Enforcement Decree of the Foreign Trade Act. According to the Foreign Trade Act and the Enforcement Decree thereof, “domestic” shall be an area where the sovereignty of the Republic of Korea is over the Republic of Korea, and “foreign country” shall be an area outside the Republic of Korea, and the matters concerning import and export between the Republic of Korea and foreign countries shall be determined in accordance with the Inter-Korean Exchange and Cooperation Act, and the matters concerning trade, such as bringing in and out of the goods, etc. between South Korea and North Korea shall be determined in accordance with the above relevant Acts and subordinate statutes, and as such, the Inter-Korean Exchange and Cooperation Act shall not apply to agricultural products brought in from South Korea, which may not be deemed to be inconsistent with the Agricultural Products Quality Control Act.

C. Judgment of the court below

According to Article 24 of the Enforcement Decree of the Agricultural Products Quality Control Act in the attached Acts and subordinate statutes, ① In the case of domestic agricultural products, etc., the indication of the place of origin shall be indicated by the method as prescribed by the Enforcement Decree of the Foreign Trade Act in the case of imported agricultural products, etc., and in the case of domestic processed products (including imported processed products that are processed in Korea), the indication of the place of origin shall be indicated by the method as prescribed by the Enforcement Decree of the Foreign Trade Act, and in the case of domestic processed products, the detailed matters concerning the method of indicating the place of origin of domestic agricultural products, etc. shall be determined by the Ordinance of the Ministry of Agriculture and Forestry, and the detailed matters concerning the method of indicating the place of origin of imported agricultural products, etc. shall be determined by the Enforcement Decree of the Foreign Trade Act. ② Under Article 26(1) of the Inter-Korean Exchange and Cooperation Act, the provisions of the Foreign Trade Act and Article 23 of the Enforcement Decree of the Foreign Trade Act provide for the indication of the place of origin of goods, etc., and in relation to the export goods of South and North Korea shall be considered.

Therefore, goods, etc. produced in North Korea must be marked in the same manner as imported goods in accordance with the Foreign Trade Act and the Enforcement Decree thereof. Thus, in the case of the extraction of mushrooms produced in the North Korea of this case, "domestic products" or "domestic products", the defendant's marking of "domestic products" is an act of falsely indicating the country of origin or an act of indicating that it might cause confusion with the country of origin, and even if it is indicated as "domestic products: North Korea", it cannot be exempted from the responsibility for violation of the Agricultural Products Quality Control Act.

Nevertheless, the court below erred by misapprehending the legal principles that the Foreign Trade Act applies not the Foreign Trade Act but the Inter-Korean Exchange and Cooperation Act with respect to the agricultural products brought in South Korea, taking into account only Article 3 of the same Act as the basis provision for legal interpretation, and acquitted the defendant on this part of the charges, thereby adversely affecting the conclusion of the judgment, and the prosecutor's allegation on this part is with merit.

3. Conclusion

Therefore, the prosecutor's appeal is justified, and the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

2.As described in paragraph A(a) above.

1. Statements by the court below in part of the defendant

1. The court below's oral statement by the non-indicted witness

1. A certificate or a copy of business registration certificate;

1. Photographs for evidence;

1. Report on investigation (the quantity and amount of violation);

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

Article 34-2 and Article 17 subparagraph 1 (Selection of Fine) of the former Agricultural Products Quality Control Act (amended by Act No. 7675 of August 4, 2005)

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

It seems that the defendant could think that North Korea is part of the Republic of Korea due to unfavorable circumstances, such as the fact that he operates a business for a considerable period of time and gains a lot of profits, as shown in the facts charged, and in special circumstances that are divided into South Korea and North Korea, the Foreign Trade Act is applied in accordance with the provisions of the Inter-Korea Exchange and Cooperation Act. However, as long as there is no provision directly regulating the indication of origin of the goods in North Korea, the foreign trade Act is applied to the goods produced in North Korea, but it is thought that it is difficult to understand it as a general public, unless there is a provision directly regulating the indication of origin of the goods in North Korea, favorable circumstances, such as

Judges Park Jong-soo(Presiding Judge)