Defendant 1 and two others

Defendants

Kim America-U.S.

Law Firm Sejong, Attorneys Choi Young-soo et al.

Busan District Court Decision 2007Ma895 Decided December 20, 2007

The judgment of the court below is reversed.

Defendant 1 (Defendant 1 of the Supreme Court Decision) shall be punished by imprisonment with prison labor for a year and six months, and by imprisonment with prison labor for a year and one year.

The number of detention days prior to the pronouncement of the judgment of the court below shall be 118 days for the defendants 1, and 129 days for the defendants 2 and 3, respectively, shall be included in the above defendants' respective sentences.

However, for three years from the date this judgment became final and conclusive, the execution of the above punishment against Defendant 3 shall be suspended.

Nos. 1 through 69 of seized evidence shall be confiscated from Defendant 2, and Nos. 70 through 80 shall be confiscated from Defendant 3.

To order Defendant 3 to provide community service for 80 hours.

1. Summary of grounds for appeal;

A. Defendant 1

(1) misunderstanding of facts

A) The Defendant, as stated in the lower judgment, did not lease a factory of Nonindicted Co. 1, located in the Geong-gun, Geongbuk-gun, Geong-gun, or did not perform its role such as providing operating funds and purchasing raw materials.

B) Defendant 1 invested KRW 70 million in pseudo Petroleum Manufacturing Business Co., Ltd. (name omitted) operated by Defendant 2. Defendant 2 used the said investment amount as operating expenses of Nonindicted Co. 1 Co., Ltd. in operating Nonindicted Co., Ltd., Defendant 2 received KRW 3 million or KRW 4 million per month in return for the said investment amount, and Defendant 1 did not directly operate Nonindicted Co. 1 Co., Ltd., and Defendant 2 working for Nonindicted Co. 1 Co. 4, 7, and Vietnam did not pay monthly pay to Nonindicted Co. 2 and the lower court.

C) Defendant 1 found Defendant 2 on July 19, 2007 and demanded the return of the investment amount. Defendant 2 ordered Vietnam, who is his employee, to provide Defendant 1 with Aelela, Felela, and Sovina, and Sovia, equivalent to the investment amount. Defendant 1 sold this to Defendant 3 and recovered the investment amount.

D) Although Defendant 1 merely invested money with the operating fund of Nonindicted Co. 1 and did not operate Nonindicted Co. 1, the lower court recognized Defendant 1’s violation of the Petroleum and Petroleum Substitute Fuel Business Act on the ground that Defendant 1 manufactured and sold Aelela and Sovinas and Sovinas and Sovinas in this part. The lower court erred by misapprehending the facts and adversely affecting the conclusion of the judgment.

2) Legal principles

pseudo petroleum products are manufactured by mixing petroleum products with petrochemicals or mixing petrochemicals with other petrochemicals, and Defendant 1’s act does not constitute manufacturing and selling pseudo petroleum products by mixing Meela with Toluene and Melan, and manufacturing so as to make small and mediums by mixing them with Toluene and Melan.

3) Unreasonable sentencing

The two-year imprisonment sentenced by the court below against Defendant 1 is too unreasonable.

B. Defendant 2

Although Defendant 2 was employed by Defendant 1 and was employed by Nonindicted Company 1 and was employed by Nonindicted Company 1, the lower court’s sentence of imprisonment with prison labor for one year and six months against Defendant 2 is too unreasonable.

C. Defendant 3

1) misunderstanding of facts and misapprehension of legal principles

With regard to the facts charged in the lower judgment, Defendant 3, from July 20, 2007 to December 21, 2007, deducted the source of the Toluene on the tank from Nonindicted Co. 1 to put it in the lux box, and was not an act of mixing the lux, so the lower court erred by misapprehending the facts that Defendant 3 was deemed to have manufactured lux petroleum products, thereby adversely affecting the conclusion of the judgment.

2) Unreasonable sentencing

The sentence of imprisonment with prison labor for the defendant 3 is too unreasonable.

2. Determination

A. As to the assertion of mistake of facts and misapprehension of legal principles

1) Defendant 1

A) As to the assertion of mistake of facts

According to the evidence duly admitted and adopted by the court below, since the representative director of the non-indicted 1 corporation is the non-indicted 2, the non-indicted 1's mother, the non-indicted 3, the non-indicted 4, the non-indicted 4, the non-indicted 4, and the non-indicted 10 of the court below's judgment, and the business registration is made in the name of the non-indicted 5 of the court below who made the above factory facilities and leases to the defendant 1; ② the defendant 1 invested KRW 70 million for the operation of the non-indicted 1 corporation; ③ the non-indicted 1 corporation sold pseudo petroleum products and transferred money to the non-indicted 6, the non-indicted 4's wife, the non-indicted 1, the non-indicted 1's wife 0, the non-indicted 4, the non-indicted 2's non-indicted 7's non-indicted 2's non-indicted 7's non-indicted 2, the defendant 1 and the non-indicted 2, the non-indicted 1 and the defendant 7.

B) As to the misapprehension of legal principles

So, it can be used as fuel for automobiles, etc., if so, if sub-packer and Aeluter are mixed in the ratio of 1:1. Defendant 1 predicted that sub-packer and Beluter will be used as fuel for automobiles, etc., mixed with sub-packer and Beluter at the first time, and manufactured one sub-packer and one sub-packer and one sub-packer, and sold them as one sub-packer without need for separate processing process. Thus, products made up of Article 1 can be used as fuel for automobiles, etc., so it can be seen that the main ingredients of automobile can be used as fuel for automobiles, etc., and thus, it can be viewed that there is no reason to treat them differently from finished products such as automobile, etc., even if only one of sub-packer or Meluter products can be used as fuel for independent distribution, and thus, it can not be used as a substitute sub-packer or a non-packer product. Thus, Defendant 1’s assertion that it can be used as a sub-pack.

2) Defendant 3

According to the evidence duly examined and adopted by the court below, ① Defendant 3 found Defendant 2 on July 19, 2007, as Defendant 1. Defendant 2 promised Defendant 1 to provide Eelel, and so on in return for his investment deposit. ② Defendant 3 made Vietnam employees of Nonindicted Co. 1, from July 2007 to July 21, 2007, to manufacture Eelel, and so on. ③ Defendant 3 paid KRW 50 million to Defendant 1. In full view of the above facts, Defendant 3 did not act as a raw material supply to Defendant 1, Defendant 2, Defendant 2, and Defendant 2, Defendant 2, Defendant 2, Defendant 7, and Defendant 2, Defendant 2, Defendant 7, Defendant 207, Defendant 2, Defendant 7, Defendant 7, and Defendant 2, Defendant 2, Defendant 7, Defendant 7, respectively.

B. As to the assertion of unfair sentencing

Although Defendants are liable for the instant crime to each other, Defendant 1 is not a good health condition, Defendant 2 is going to marriage, Defendant 3 is mainly engaged in the sale of pseudo petroleum products, and other factors of sentencing prescribed in Article 51 of the Criminal Act that are indicated in the record, such as the Defendants’ age, etc., the sentence imposed by the lower court is too unreasonable.

3. Conclusion

Therefore, since the defendants' appeal is well-grounded, 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.

Since each corresponding column of the judgment below is the same as that of the judgment below, it shall be quoted in accordance with Article 369 of the Criminal Procedure Act.

1. Article applicable to criminal facts;

A. Defendant 3 (Paragraphs 5 and 8 of the Criminal Act : Article 44 subparag. 3 and 29 of the Petroleum and Petroleum Substitute Fuel Business Act, Article 30 of the Criminal Act

B. Defendant 1 and Defendant 2: Article 44 subparag. 3 and Article 29 of the Petroleum and Petroleum Substitute Fuel Business Act, and Article 30 of the Criminal Act, inclusive, by Defendant

1. Selection of punishment;

Each Imprisonment Selection

1. Concurrent disposition: Defendant 1;

The latter part of Article 37 and Article 39(1) of the Criminal Act

1. Aggravation: Defendant 3;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act

1. Inclusion of days of detention in detention;

Article 57 of the Criminal Code

1. Suspension of execution: Defendant 3;

Article 62(1) of the Criminal Act (Special Consideration in front)

1. Confiscation: Defendant 2, 3;

Article 48(1)1 and 2 of the Criminal Code

1. Order of community service: Defendant 3;

Article 62-2 of the Criminal Act, Article 59 of the Probation, etc. Act

It is so decided as per Disposition for the above reasons.

Judges Lee Ho-woo (Presiding Judge)