(영문) 울산지방법원 2003. 7. 18. 선고 2003노290 판결

When Defendant 1 fails to pay the above fine, the above defendant shall be confined in a workhouse for the period converted by KRW 40,000 into one day.

Provided, That the fractional amount shall be one day.

Reasons

1. Summary of grounds for appeal;

A. misunderstanding of facts or misapprehension of legal principles

(1) In the case of multi-stage salesmen, it is customary to recommend voluntary purchase of the product to provide sufficient explanation with knowledge of the efficacy of the product for the purpose of selling the product. The purchase of the product is based on the intention of a person who wishes to become a multi-stage salesman exclusively, and there is no fact that Defendant 1 forced the purchase of the product to purchase a certain number of products to the victim during the process of soliciting multi-stage salesmen, thereby imposing a substantial burden on the purchase cost of the product.

The court below found Defendant 2 guilty by applying joint penal provisions to Defendant 2, but since multi-stage salesmen, such as Defendant 1, have the status of independent sales, Defendant 2 corporation is not the employer of the above Defendant 1, and thus, Defendant 2 corporation cannot apply joint penal provisions to multi-stage sales business operators with respect to the act of violating the prohibition obligation of multi-stage salesmen.

B. The assertion of unfair sentencing

The sentence of the court below is too heavy.

2. Determination:

A. Judgment on misconception of facts or misapprehension of legal principles

(1) In light of the evidence duly adopted and examined by the court below, it is recognized that Defendant 1 had a person who wishes to be a multi-stage salesman of Defendant 2 corporation purchase 165,00 or KRW 220,000,00 of the manufacture cost, etc., and thus, even if the above amount was received from the person who wants to be a multi-stage salesman in the form of a multi-stage salesman, the substance of the above amount was borne by the above person. Thus, Defendant 1's above assertion is rejected.

In full view of the evidence duly admitted and examined by the court below, Defendant 2 Co., Ltd. may recognize that Defendant 1, a multi-level marketing salesperson, issued a multi-level marketing salesperson pocketbook, multi-level marketing salesperson registration certificate, etc., supplied the sales product of this case, and that it is in fact directly and indirectly directed and supervised multi-level marketing salespersons including Defendant 1 through the payment of support allowances, etc., Defendant 1 is an employee of Defendant 2 Co., Ltd. even if the employment contract was not directly concluded, so it is reasonable for the court below to apply joint penal provisions to Defendant 2 Co., Ltd.

B. Determination on the assertion of unfair sentencing

In full view of the various circumstances that form the materials of sentencing as recorded in the records, such as the motive and age of the instant crime against Defendant 1, character and conduct, family relation, property level, criminal records, and circumstances after the crime, and the various sentencing conditions against Defendant 2 corporation, the lower court’s sentence against the Defendants is somewhat inappropriate and thus, deemed unfair.

3. Conclusion

Therefore, since each appeal by the defendants is well-grounded, the part of the judgment below against the defendants in accordance with Article 364(6) of the Criminal Procedure Act is reversed, and it is decided as follows through the pleading.

Criminal facts and summary of evidence

Except where the part of the "paragraph (a)(2) of the judgment of the court below is corrected as "paragraph (1) of the same Article," the same shall apply as described in the corresponding column of the judgment below.