Defendant 1 and four others

Defendant 1 and three others and the Prosecutor

Edives Sponsor

Law Firm Barun, Attorneys Jung-soo et al.

Seoul Central District Court Decision 2006Gohap871, 2006 Seocho2788 Decided October 27, 2006

1. The appeal by Defendant 1 and the prosecutor against the same Defendant are dismissed, respectively.

2. Prosecutor’s appeal against Defendant 2 is dismissed.

3. A. The part of the lower judgment against Defendant 3, 4, and 5 is reversed.

B. Defendant 3 shall be punished by imprisonment with prison labor for two years and by a fine of KRW 653.2 million, by imprisonment with prison labor for one year and six months and a fine of KRW 154 million, and Defendant 5 shall be punished by imprisonment with prison labor for one year and six months and a fine of KRW 653.2 million.

C. In a case where the above defendants did not pay the above fine, 2.5 million won for the defendants 3 and 5, and 1.5 million won for the defendants 4 shall be confined in the old house for the period calculated by converting 1.5 million won for each day. However, the fractional amount shall be one day.

D. The number of days of detention prior to the pronouncement of the judgment below shall be 101 days each included in the period of detention in the workhouse in the defendant 3 and 4, and 99 days each included in the period of detention in the workhouse to the defendant 5.

E. However, for three years from the date this judgment became final and conclusive, the execution of each of the above defendants' imprisonment is suspended.

(f) Two kicks for mixing with seizure (No. 306 No. 3084), six knife for mixing (No. 31.1), six knife for mixing (No. 31.2), one knife for mixing (No. 31.3), one knife for mixing (No. 31.4), one knife for mixing (No. 324), one knife for measuring cosmetics weight (No. 32), one knife for measuring cosmetics weight (No. 333), five knife for five knife (name omitted), five knife for five knife (5 knife No. 34), five knife Nos. 157, 25 knife No. 251, 36 knife No. 154, 15 knife No.265).

I. As to Defendant 1

1. Whether the Act on Special Measures for the Control of Public Health Crimes is applied;

(a) Grounds for appeal (defendant 1);

(1) Article 3 of the Act on Special Measures for the Control of Public Health Crimes provides that "A person who manufactures cosmetics without permission under Article 26 (1) of the Pharmaceutical Affairs Act and sells cosmetics with the knowledge of the fact." (1) There is no provision corresponding to "a person who manufactures cosmetics without permission" under Article 6 of the Addenda of the Cosmetics Act because the act of manufacturing cosmetics has changed from "permission system" to "report system" due to the enactment of the Cosmetics Act, and there is no provision corresponding to "a person who manufactures cosmetics without permission" under Article 6 of the Addenda of the same Act. (2) The enactment of the Cosmetics Act is due to legislative reflect that it is not appropriate to regulate cosmetics in the same or similar manner as medicines. (3) Since the statutory punishment for the act of manufacturing cosmetics without permission under the Act on Special Measures for the Control of Public Health Crimes differs significantly from the statutory punishment for the act of manufacturing cosmetics without reporting, etc. under Article 3 of the Act on Special Measures for the Control of Public Health Crimes.

B. Determination

(1) The summary of the facts charged against Defendant 1 is as follows: (a) without reporting between February 2005 and September 2, 2005, the above Defendant manufactured cosmetics worth KRW 12.8 million in total at retail prices; and (b) around the same time sold cosmetics manufactured as above to Defendant 2.

(2) Article 3(1) of the Act on Special Measures for the Control of Public Health Crimes, which was enforced during the above period, provides that “a person who manufactures medicines or cosmetics without obtaining permission under Article 26(1) of the Pharmaceutical Affairs Act,” and “a person who knowingly sells them shall be punished by imprisonment for life or for not less than three years, if the value of the medicines or cosmetics to a person who knowingly sells them is not less than KRW 10 million per year at retail prices.” Article 3(2) of the same Act provides that a fine equivalent to not less than two times but not more than five times the retail value of the products manufactured or sold shall be imposed concurrently.

(3) Prior to the amendment by Act No. 6025 of September 7, 1999, Article 26(1), Article 26(1), Article 55 and Article 59, Article 26(1), Article 74(1) provides that no person who intends to engage in a manufacturing business of pharmaceutical products and cosmetics shall obtain a license, and Article 74(1) provides that no person shall sell manufactured pharmaceutical products and cosmetics in violation of Article 26(1), and Article 74(1) provides that a person who violates Articles 26(1) and 59 shall be punished by imprisonment for not more than five years or by a fine not exceeding twenty million won.

(4) The Cosmetics Act was enacted by Act No. 6025 on September 7, 199 and came into force on July 1, 200. Article 3(1) provides that any person who intends to engage in the business of manufacturing cosmetics shall file a report, and Article 14(1) provides that any cosmetics manufactured by a person who fails to file a report under Article 3(1) shall not be sold, and Article 28(1) provides that any person who violates Article 3(1) shall be punished by imprisonment for not more than three years or by a fine not exceeding ten million won, and Article 29(1) provides that any person who violates Article 14(1) shall be punished by imprisonment for not more than one year or by a fine not exceeding five million won.

(5) On the other hand, the Pharmaceutical Affairs Act was amended by Act No. 6025 on September 7, 1999 and enforced on July 1, 200, and excluded cosmetics from manufacturing business, among manufacturing businesses that provide that permission shall be granted under Article 26(1) as above, and the above provisions not to sell cosmetics under Articles 55 and 59. As above, the Cosmetics Act enacted by Act No. 6025 on July 1, 200 and enforced on July 1, 200 cites the provisions related to cosmetics under Article 6 of the Addenda and Article 6 of the Addenda of the Pharmaceutical Affairs Act, and if there are provisions corresponding to this Act in this Act, it shall be deemed that this Act or the corresponding provisions of this Act are cited instead of the provisions of the Pharmaceutical Affairs Act.

(6) As seen above, the Pharmaceutical Affairs Act prohibits previous permission for the manufacturing business of cosmetics in the same manner as that for the manufacturing business of cosmetics; however, the sale of cosmetics manufactured without such permission was prohibited, but excluded from permission for the manufacturing business of cosmetics; the cosmetic Act requires a report on the manufacturing business of cosmetics; and prohibits the sale of cosmetics manufactured without such report, only the difference between whether to obtain permission or make a report on the manufacturing business of the same product is sufficient; and there is no difference in prohibiting the sale of cosmetics manufactured without obtaining permission or making a report.

In addition, both Pharmaceutical Affairs Act and the Cosmetics Act aim to contribute to the improvement of public health, and they have facilities suitable for each manufacturing industry in accordance with the prescribed facility standards and have the safety and effectiveness of items examined.

(7) In light of the above circumstances, Article 3 (1) of the Cosmetics Act provides that a report on the business of manufacturing cosmetics of this case shall be filed. In comparison with the provision that permission on the business of manufacturing cosmetics of this case of this case of Article 26 (1) of the Pharmaceutical Affairs Act prior to the revision, Article 3 (1) of the Cosmetics Act is identical to the subject of regulation and the possibility of punishment, and Article 6 of the Addenda of the same Act provides that "this Act (cosmetic-related regulations of the Pharmaceutical Affairs Act)" is "the provisions corresponding to the above Act (cosmetic-related regulations of the Pharmaceutical Affairs Act)". Thus, Article 3 (1) of the Act on Special Measures for the Control of Public Health Crimes shall apply to the act of manufacturing cosmetics or selling cosmetics manufactured without reporting under the Cosmetics Act. Accordingly, Defendant 1's assertion on this issue is without merit.

2. Whether the sentencing is unreasonable

(a) Grounds for appeal (defendant 1 and prosecutor);

Defendant 1: The punishment sentenced by the lower court to Defendant 1 (the imprisonment of three years and the fine of 12,80,000 won for a period of one year and six months) is too unreasonable.

Prosecutor: The above-mentioned sentence is too uneased so as to be inappropriate.

B. Determination

Defendant 1’s “fire cream” manufactured and sold a large number of materials of cosmetics whose body is unknown, including the number exceeding the limit permitted (including the number of 145.3 pmp in the “fire cream,” which was directly seized by the above Defendant). The above Defendant had the power to be sentenced to a fine of KRW 10 million as a violation of the Pharmaceutical Affairs Act on February 2, 2000, along with the fact that the above Defendant was manufactured and sold even though he was aware that a large quantity of materials are contained in the “fire cream,” the circumstance that the above Defendant was manufactured and sold was not verified. The Defendant’s sale of the “fire cream,” which was suspended by Defendant 2, and the Prosecutor’s allegation that the Defendant’s above Defendant’s aforementioned punishment was too unjust or unreasonable on the grounds that the Defendant’s aforementioned Defendant’s health condition and family conditions were considered as being revealed.

Ⅱ As to Defendant 2

(a) Grounds for appeal;

The sentence sentenced by the court below against Defendant 2 (the 3 years of suspended execution and the 12,800,000 won in imprisonment for one year and six months) is too uneased and unreasonable.

B. Determination

In light of the fact that Defendant 2 acquired and sold a large quantity of non-reported cosmetics containing the number of Defendant 2, and that he did so without a doctor’s license, the issue and the nature of the crime cannot be deemed to be less than that of the crime. However, in full view of various sentencing conditions as shown in the pleadings, such as the first offender, reflects the fact that the above Defendant is a primary offender, and other health conditions, the lower court’s punishment against the above Defendant is too unjustifiable and unreasonable. Therefore, the prosecutor’s assertion on this is without merit.

Ⅲ As to Defendant 3, 4, and 5

1. Whether the Act on Special Measures for the Control of Public Health Crimes is applied;

Defendant 3 and Defendant 5 asserted that Article 3(1) of the Act on Special Measures for the Control of Public Health Crimes cannot be applied as seen earlier, and the summary of the facts charged in the instant case against Defendant 3 and Defendant 5 is as follows: (a) without filing a report between May 2005 and March 23, 2006 between the above Defendants, the said Defendants manufactured cosmetics equivalent to KRW 154 million in total and KRW 492 million in retail prices; and (b) sold cosmetics manufactured as above to the skin room, etc. around the same time; and (c) in such a case, Article 3(1) of the Act on Special Measures for the Control of Public Health Crimes applies to Defendant 1’s grounds for appeal. Accordingly, Defendant 3 and Defendant 5’s assertion on this point is without merit.

2. Whether they are co-principals;

(a) Grounds for appeal (defendants 3 and 5);

Defendant 3 and Defendant 5 differed from their respective accounts. Defendant 3 sold cosmetics to Defendant 5, Defendant 5 sold cosmetics to general consumers, and the said Defendants did not manufacture and sell cosmetics in collusion.

B. Determination

Comprehensively taking account of the evidence duly admitted and examined by the court below, the above defendants' intent to manufacture and sell cosmetics and the fact that they manufactured and sold cosmetics according to their role sharing can be acknowledged. Thus, the above defendants' assertion on this issue is without merit.

3. Whether water or other harmful ingredients to human body are contained.

(a) Grounds for appeal (defendants 3, 4, 5);

The cosmetic manufactured and sold by Defendant 3, Defendant 4, and Defendant 5 did not contain any ingredients harmful to human body, such as water.

B. Determination

(1) Whether a water contains water or not

The ○○ Investigative Agency did not analyze ingredients of cosmetics directly seized from Defendant 4 and Defendant 5 until the original trial. The cosmetics directly seized by the investigative agency (Seoul Central District Prosecutors’ Office No. 40, 40.2, 47, 48, and 49) were analyzed in the first instance by the Korean Science and Technology Research Institute. As a result, the number of "minimum 0.76 pb" in the above seized objects was detected from 1 pb. 1 pb. 1 pb. 1 p. 00 p. m. 3 p. 4 p. 4 p. 4 p.m. excluding the sp. 206 p. 1 p.m. 206 and 400 p. 1 p.m. 4 p. m. from ○○ Food and Drug Safety Agency, it is difficult to recognize that the sp. 1 p. 4 p.m. m. sp from 206 to 3 p.

(2) Whether it contains dives, dives, etc.

According to Article 200-27 of the Notification of the Food and Drug Safety Agency (Evidence No. 9) Regulations on Designation of and Criteria for, test method for, etc. of cosmetics (Evidence No. 9), Denthhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh

(3) Effect of the lower judgment

Thus, it is difficult to recognize that the above defendants contain harmful ingredients to human body, such as the number of 'brush' cosmetics manufactured and sold. The court below recognized that such ingredients are contained, and based on sentencing, it is based on the determination of facts that affected the conclusion of the judgment. Thus, Defendant 3, 4, and 5's assertion on this is with merit.

IV. Conclusion

Therefore, the appeal filed by Defendant 1 and the prosecutor against the same defendant is without merit, and there is no ground for appeal filed by the prosecutor against Defendant 2. Thus, all of the above appeal is dismissed pursuant to Article 364(4) of the Criminal Procedure Act, and since the appeal filed by Defendant 3, 4, and 5 is with merit, each part of the judgment below against Defendant 3, 4, and 5 is reversed and it is decided as follows through the pleading pursuant to Article 364(6) of the Criminal Procedure Act.

The criminal facts against Defendant 3, 4, and 5 recognized by the trial court are as shown in the corresponding column of the judgment below, except for deletion of “the number of ingredients harmful to human body” in Article 1.1. A. of the criminal facts of the judgment of the court below, as stated in the corresponding column of the judgment of the court below, except for deletion of “the number of ingredients harmful to human body”. Thus, it is cited as it is in accordance with Article 369 of the Criminal Procedure Act.

1. Defendants’ legal statement

1. A protocol on the examination of each police suspect against Nonindicted 1, Nonindicted 2, and Nonindicted 3

1. Each seizure record of the police;

1. A criminal investigation report (related to the place of sales of crowdfunding), investigation report (related to the attachment of photographs of seized articles);

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

Article 3 (1) 2 and (2) of the Act on Special Measures for the Control of Public Health Crimes, Article 3 (1) of the Cosmetics Act, Article 6 of the Addenda (Enforcement of July 1, 200) of the Cosmetics Act, Article 30 of the Criminal Act. Article 30 of the Criminal Act is concurrently imposed on the manufacture and sale of non-reported cosmetics, selection of a limited term of imprisonment and fine)

1. Aggravation for concurrent crimes;

Article 37 former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act (Aggravation of concurrent crimes with Punishment prescribed in the Act on Special Measures for the Control of Public Health Crimes due to Sale of Cosmetics with Severe Declaration)

1. Discretionary mitigation;

Articles 53, 55(1)3, and 6 of each Criminal Code (see, e.g., Articles 55(1)3 and 55(1)6)

1. Invitation of a workhouse;

Articles 70 and 69(2) of the Criminal Code

1. The inclusion of pre-trial detention days in the judgment below

Article 57 of the Criminal Code

1. Suspension of execution;

Article 62(1) and (2) of the Criminal Code

1. Confiscation (Defendant 4, 5);

Article 48 (1) of the Criminal Code

1. Defendant 3

Considering various sentencing conditions shown in pleadings, such as the fact that the above defendant was supplied with clear cosmetics from Non-Indicted 4's name "non-Indicted 4" and provided them in large volume to Defendant 4 and 5, and that considerable amount of the "shsh" cosmetics supplied by the above defendant was not distributed after seizure, including the number of the above cosmetics, it is difficult to recognize that the above cosmetics contain harmful ingredients to the human body, such as that there is no previous cosmetic, that there is no previous cosmetic, and that they are against the life of detention for a considerable period of time.

2. Defendant 4

The above defendant attempted to recover KRW 100 million invested in the defendant 5, along with the fact that the amount of the cosmetic supplied by the defendant 3 is not a large amount of the cosmetics sold by the above defendant 3, and to recover KRW 100 million invested in the defendant 5, and it is difficult to recognize that the cosmetics include ingredients harmful to the human body, such as the number of the above cosmetics, the primary offender, and the anti-influence

3. Defendant 5

In addition to the fact that the above defendant sold cosmetics supplied by the defendant 3, it is difficult to recognize that the above cosmetic contains harmful ingredients to human body, such as the number of the above cosmetics, and there is no previous cosmetic, and it is against the life of detention for a considerable period of time, taking into account various sentencing conditions as shown in the arguments.

Judge Cho Young-young (Presiding Judge)