(영문) 대법원 2015.9.10. 선고 2015도7860 판결

Of the lower judgment, the part of the lower judgment against the violation of the Petroleum and Petroleum Substitute Fuel Business Act as of November 23, 2013 is reversed, and that part of the case is remanded to the Panel Division of the District Court. The remaining grounds of appeal are dismissed.

Reasons

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the ground of appeal on the violation of the Petroleum and Petroleum Substitute Fuel Business Act from June 27, 201 to August 1, 2011

A. The summary of this part of the facts charged is that Co-defendant B conspired to sell pseudo petroleum products by mixing them with light oil and light oil in the court below's judgment. From June 27, 2011 to August 1 of the same year, the defendant is in charge of the order and supply of oil in actual operation of the above gas station, and the defendant manufactures pseudo petroleum products with the method of inserting oil in light of the defendant's order while working as an employee at the above gas station, and then sells pseudo petroleum products for the above period. The above facts charged are charged only for selling pseudo petroleum products in relation to comprehensive crimes, and the facts charged are specified as long as the whole time, completion period, place of crime, total sale quantity, etc. are stated in the facts charged, and even if the sale quantity is not certain daily, the defendant's assertion that it is difficult to defend or defend the facts charged cannot be accepted.

B. Examining the reasoning of the lower judgment in light of the evidence duly admitted by the lower court, the lower court is justifiable to have found the Defendant guilty of violating the Petroleum and Petroleum Substitute Fuel Business Act by selling 453,550 liters from June 27, 201 to August 1, 2011 in collusion with B, on the grounds indicated in its reasoning. In so doing, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on co-principal, contrary to what is alleged in the grounds of appeal.

2. As to the grounds of appeal on the violation of the respective petroleum and alternative fuel business by manufacturing and selling pseudo petroleum products from July 12, 2013 to July 13, 2013

Examining the reasoning of the lower judgment in light of the evidence duly admitted by the lower court, it is justifiable to have determined that the lower court was guilty of all of the violations of each of the petroleum and petroleum substitute fuel business, which were manufactured from July 12, 2013 to July 13, 2013, and sold fake transit 2,000 liter during the period from July 13, 2013 to July 14:00, and from July 13, 2013 to July 17:50 of the same day, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, contrary to what is alleged in the grounds of appeal.

3. As to the grounds of appeal on unreasonable sentencing

According to Article 383 subparagraph 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years has been imposed, an appeal on the grounds of unfair sentencing is allowed. Thus, in this case where a more minor imprisonment with prison labor has been imposed on the defendant, the argument that the sentencing of

4. As to the ground of appeal on the violation of the Petroleum and Petroleum Substitute Fuel Business Act by manufacturing and storing pseudo petroleum products as of November 23, 2013

A. The judgment of the court below

According to the reasoning of the lower judgment, the lower court sentenced the Defendant to KRW 100 million by applying the joint penal provisions of Article 48 of the former Petroleum and Petroleum Substitute Fuel Business Act (amended by Act No. 12294, Jan. 21, 2014; hereinafter the same) to the act of manufacturing and storing pseudo petroleum products of Co-Defendant C, an employee, on the premise that the Defendant is the owner of a Gju station.

B. Judgment of the Supreme Court

1) Article 48 of the former Petroleum and Petroleum Substitute Fuel Business Act provides a joint penal provision that, if a representative of a corporation, or an agent, employee, or other servant of the corporation or an individual commits an offence under any of Articles 44 through 47 in connection with the business of the corporation or the individual, not only shall such offender be punished, but also the corporation or the individual shall be punished by a fine under the relevant provisions. Such joint penal provision is a penal provision on the corporation which is the main agent of the act of violation, in addition to the punishment of the employee who is the offender, if the business owner is a corporation, and thus, the corporate employee's offense is only subject to punishment

2) According to the evidence duly admitted by the lower court, the business owner, who is the main agent of the benefit of the Ginju, is a corporation J., and the Defendant is the representative of the said corporation.

3) Nevertheless, the court below erred by misapprehending the legal principles on the subject of the application of Article 48 of the former Petroleum and Petroleum Substitute Fuel Business Act, thereby adversely affecting the conclusion of the judgment, on the premise that the defendant, who is merely the representative of a corporation, is the employee of a corporation, is punished under the joint penal provisions under Article 48 of the former Petroleum and Petroleum Substitute Fuel Business Act. The ground of appeal pointing this out is with merit.

5. Scope of reversal

The lower court found all of the facts charged in the instant case guilty. In so doing, the part concerning the violation of the Petroleum and Petroleum Substitute Fuel Business Act from around June 27, 201 to around August 13, 2011, and the violation of the respective petroleum and Petroleum Substitute Fuel Business Act from around July 12, 2013 to around July 13, 2013, respectively, shall be sentenced to one imprisonment, and separate fines for the violation of the said Act and Petroleum Substitute Fuel Business Act from around November 23, 2013. In this case, the part concerning the violation of the said Act from around June 27, 2011 to around August 1, 2011, and the remaining part concerning the violation of the said Act from around July 12, 2013 to around July 13, 2013, shall be separately treated as the case, and the remaining part concerning the violation of the said Act shall not be separately treated as the case subject to a fine under the said Act, and the remaining part concerning the crime of petroleum and petroleum substitute fuel business.

6. Conclusion

Therefore, the part of the lower judgment regarding the violation of the Petroleum and Petroleum Substitute Fuel Business Act of November 23, 2013 is reversed without examining the remaining grounds of appeal, and it is remanded to the lower court for further proceedings consistent with this Opinion. The remaining grounds of appeal are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.