2013No613(a) Violation of the Act on Special Measures for the Control of Public Health Crimes

2)

(b) Violation of the Food Sanitation Act;

1. (a) A;

2. B

3. The Korea Fisheries Corporation;

B Representative Director

Defendants

Kim Jong-tae (prosecution) and Park Jae-young (Trial)

Law Firm C (For Defendant A)

Attorney Kim Hyun-young

Attorney E (the defendant B, the defendant corporation of the Republic of Korea, the defendant corporation

b)

Busan District Court Decision 2013Gohap590 Decided November 1, 2013

February 19, 2014

All appeals by the Defendants are dismissed.

1. Summary of grounds for appeal;

(a) misunderstanding of facts or misunderstanding of legal principles [Defendant B and the defendant corporation and the defendant corporation corporation corporation corporation of the Korea River Corporation (hereinafter referred to as the "defendant corporation];

1) The instant crime is only a single crime committed by A, and there is no fact that Defendant B, the representative director of the Defendant Company, made Defendant B to manufacture and sell the spring water exchange.

2) Even if not, the Defendant Company reported the manufacturing and processing business of food pursuant to the relevant laws, such as the Food Sanitation Act, and the Defendant Company manufactured and sold a astronomical recovery as an employee of the Defendant Company. Thus, it does not constitute a sale of food manufactured by the unreported Company.

B. Unreasonable sentencing (defendants)

The sentence sentenced by the court below (Defendant A: one year and six months of imprisonment and fine of 100 million won; imprisonment of eight months; suspended sentence of two years; fine of ten million won for Defendant Company) is too unreasonable.

2. Determination

A. Judgment on the misconception of facts or misapprehension of legal principles by Defendant B and Defendant Company

1) As to the assertion that Defendant B did not participate in the manufacture and sale of A’s astronomical recovery in collusion with Defendant B

(A) On March 14, 2012, the lower court found that Defendant Company B entered into a sales contract with Company B (hereinafter referred to as “A”) with Company B and 20,000,000,000 won for each of the following reasons; Defendant B entered into a sales contract with Company B (hereinafter referred to as “B”) with Defendant B; Defendant B entered into a sales contract with Company B (hereinafter referred to as “Defendant B”); Defendant B (hereinafter referred to as “Defendant B”); and (c) Defendant B entered into a sales contract with Company B on March 13, 2012 with Company B and stated that Defendant B entered into a sales contract with Company B (hereinafter referred to as “Defendant B”); and (d) Defendant B entered into a sales contract with Company B with Company B (hereinafter referred to as “Defendant C”); and (e) Defendant B (hereinafter referred to as “Defendant C”) with Company B’s total quantity and column on August 2, 2012 with Defendant B’s total quantity and column on the same ground.

나) 살피건대, 원심이 설시한 사정들에다가 원심이 적법하게 채택하여 조사한 증거들에 의하여 인정되는 다음과 같은 사정들, 즉 ① A는 수사기관부터 당심에 이르기까지 일관되게 '피고인 B로부터 천수환을 제조하여 팜스홀 등에 공급하라는 지시를 받고 피고인 회사에서 만든 어성초 엑기스, 어성초 도두통 삼백초가 든 액상 파우치 등을 구매하여 천수환(지름 약 1cm)을 제조·판매하였고, 팜스홀로부터 1차로 5,500만 원권 자기앞수표를 받아 피고인 B에게 주었더니 그 중 4,000만 원을 돌려주어 2차로 받은 3,700만 원과 보태어 재료비로 사용하였다'고 진술한 점, ② 피고인 B는 당심에서 2012. 3. 14.자 총판계약을 체결한 후 피고인 회사에서 만든 천수환(지름 0.1m)을 공급하다가 2012. 8. 2. 위 계약을 해지하고 같은 날 계약금 3억 원의 총판계약을 구두로 체결하면서 F의 요구로 2012. 8. 2.자 총판계약서를 작성한 것이라고 변소하나, 2012. 3. 14.자 총판계약에 따라 공급된 천수환은 피고인 A가 제조한 지름 약 1㎝의 천수환인 점(피고인 B는 검찰에서는 자신이 F에게 천수환을 공급한 사실이 없다고 진술하였다), 위 총판계약에 따라 피고인 회사에서 만든 천수환을 공급하였다면, 팜스홀로부터 받은 9,200만 원 중 1,500만 원을 뺀 나머지를 A로 하여금 사용토록 할 이유가 없어 보이는 점, F은 2012. 3. 14.자 총판계약의 당사자인 팜스홀이 단가가 맞지 않는다며 계약을 해지하여 2012. 8. 2.자 총판계약을 다시 체결한 것이라고 진술하였을 뿐 계약 금 3억 원의 구두약정에 대하여는 전혀 언급하지 않은 점, 이 사건 이전에도 피고인 B는 A를 통하여 내추럴팜 H 등과 총판계약을 체결하였다가 공급된 환에서 발기부전 치료제 성분인 호모실데나필이 검출되어 문제가 된 적이 있었던 점 등에 비추어 피고인B의 변소는 이를 그대로 믿기 어려운 점 등을 보태어 보면, 원심이 피고인 B가 A를 통하여 팜스홀, F과 사이에 총판계약을 체결한 후 제조·가공업 영업신고를 한 바 없는 A로 하여금 천수환을 제조·판매하도록 지시하였거나, 적어도 A가 천수환을 제조·판매한다는 사실을 알면서도 이를 묵인함으로써 A의 천수환 제조·판매로 인한 식품위생법 위반 범행에 가담하였다고 판단한 것은 정당한 것으로 수긍이 가고, 거기에 피고인들의 주장과 같은 잘못이 있다고 볼 수 없다.

Therefore, this part of the Defendants’ assertion is without merit.

2) On the assertion that Defendant A manufactured and sold a astronomical exchange as an employee of Defendant Company, the lower court determined that the Defendants’ assertion that A manufactured and sold a astronomical exchange by voluntarily procuring some of the materials at their own house, which is a place separate from Defendant Company’s factory, was without merit, even though it was recognized that F used the position of director of Defendant Company, and F and G knew that A was a director of Defendant Company. Meanwhile, there was no evidence to acknowledge that A received certain benefits from Defendant Company, or registered or reported as an employee of Defendant Company. Rather, Party A was recognized to have manufactured and sold a astronomical exchange by procuring some materials at its own house, which is a place separate from Defendant Company’s factory.

Examining the evidence duly adopted and examined by the court below in light of the records, the above determination by the court below is just and acceptable, and it cannot be deemed that there were errors as alleged by the Defendants.

Therefore, the Defendants’ assertion on this part is without merit.

B. Determination on the Defendants’ assertion of unfair sentencing

1) There are circumstances to consider the Defendant as follows: (a) the actual profits that the Defendant acquired due to the instant crime by the Defendant A does not seem to be large; (b) substantial parts of the manufactured food were recovered and not distributed during the trial; (c) the Defendant’s confession of all the crimes in the original trial court; and (d) the Defendant reflects the mistake after the confession; and (d) there

However, the crime of this case is an unfavorable circumstance to the defendant in light of the purpose of legislation of the Food Sanitation Act, which aims to prevent sanitary hazards caused by food and improve the quality of food nutrition, and to contribute to the improvement of the public health by preventing sanitary harm caused by food and promoting improvement in the quality of food nutrition, etc. in light of the purport of legislation of the Food Sanitation Act, such as the following: (a) the defendant was engaged in the process of manufacturing and selling food by adding a pen pen which may have a serious impact on health if he takes place without any doctor's prescription; (b) the defendant has taken the lead in the process of manufacturing and selling a astronomical exchange; (c) the defendant had the attitude of denying the crime in the investigative agency; and (d) the defendant has been engaged in manufacturing and selling the refund by using the pre-dive donation treatment system at around 2008.

In full view of such various circumstances and the defendant’s age, family relation, character and conduct, environment, motive and background of the crime, and circumstances after the crime, etc., various sentencing conditions as shown in the arguments in the instant case and the scope of recommended sentencing guidelines, the lower court’s punishment is deemed to be too unreasonable.

Therefore, the defendant's assertion is without merit.

2) Defendant B

The extent of the Defendant’s participation in the instant crime is relatively small; the Defendant holds the patent registration of extractions whose principal ingredient is the fish banks and the three white banks, and products such as their applied return; and the Defendant has no record of criminal punishment exceeding the fine, in addition to the suspended sentence of imprisonment, due to the violation of the Forestry Products Control Act in 1970, due to the violation of the Forestry Products Control Act.

However, in light of the content of the crime and the legislative intent of the Food Sanitation Act, the crime of this case was committed in collusion with the competent authority that the defendant did not report food manufacturing and processing business to a competent authority. In light of the content of the crime and the legislative intent of the Food Sanitation Act, the crime of this case is not less complicated, and the defendant did not seem to have any attitude of denying A’s sole crime until the trial was over and against the criminal act was committed, and the defendant had been subject to a fine of two times due to the crime of violating the Food Sanitation Act.

In full view of the various circumstances against such defendant and the criminal defendant's age, health status, family relationship, character and conduct, environment, motive and circumstance of the crime and circumstances after the crime, etc., the sentence of the court below is too unreasonable.

Therefore, the defendant's assertion is without merit.

3) In full view of the contents of the instant crime as seen earlier by the Defendant Company, the degree of Defendant B’s participation in the instant crime, and the profits acquired therefrom, etc., the lower court’s punishment is too unreasonable, as it is too unreasonable.

Therefore, the defendant company's argument is without merit.

3. Conclusion

Therefore, the defendants' appeal is without merit, and all of them are dismissed under Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition (However, since the registration of food manufacturing and processing business in the part of the criminal facts of the judgment of the court below is obvious that the "registration of food manufacturing and processing business" in the part of the defendant A and B (Violation of the Food Sanitation Act) is a clerical error in the former Food Sanitation Act (amended by Act No. 11690, Mar. 23, 2013). Thus, the above correction is made in accordance with Article 25 of the Regulations on Criminal Procedure.

The presiding judge and the judge;

Judges Jong-young

Judge Lee Jae-Un,