[1] Whether Article 26 of the Petroleum Business Act prohibiting the manufacture, etc. of pseudo petroleum products and Article 30 of the Enforcement Decree of the same Act are unconstitutional or unlawful (negative)

[2] The case affirming the judgment of the court below which found the defendant guilty on the premise of the Supreme Court and other legal interpretation, but which found the defendant guilty in light of the facts established by the records

[1] Article 26 of the Petroleum Business Act prohibits anyone from producing and selling pseudo petroleum products by mixing petroleum products with other petroleum products or mixing petroleum products with petrochemicals. Article 30 of the Enforcement Decree of the Petroleum Business Act prohibits anyone from using gasoline or light oil as fuel (excluding energy stipulated in each subparagraph) as pseudo petroleum products, which can be used as fuel for machinery and vehicles under each subparagraph of Article 2 of the Enforcement Decree of the Automobile Management Act (hereinafter “automobile, etc.”). The purport of prohibiting the act of producing and selling pseudo petroleum products is to maintain the quality of gasoline and light oil, and ultimately, to maintain the quality of petroleum products intended to use gasoline or light oil as fuel, and to prohibit the production and sale of pseudo petroleum products without any intention or purpose from using gasoline or light as fuel, it is reasonable to interpret the principle of prohibition of excessive interpretation of Article 37 of the Automobile Business Act and the principle of prohibition of excessive interpretation of Article 26 of the Enforcement Decree of the Petroleum Business Act as fuel.

[2] The case affirming the judgment of the court below which found the defendant guilty on the premise of the Supreme Court and other legal interpretation, but which found the defendant guilty in light of the facts established by the records, is justified.

[1] Article 26 of the Petroleum Business Act, Article 30 of the Enforcement Decree of the Petroleum Business Act, Article 2 subparagraph 1 of the Automobile Management Act, Article 2 of the Enforcement Decree of the Automobile Management Act, Articles 12, 15, 37 (2), and 75 of the Constitution / [2] Articles 364 and 39 of the Criminal Procedure Act

[1] Supreme Court Decision 2000Do6088 decided May 8, 2001 (Gong2001Ha, 1421)

Defendant

Defendant

Attorney Lee Jong-chul

Daejeon District Court Decision 2001No378 delivered on May 24, 2001

The appeal is dismissed. 5 days out of detention days after the appeal shall be included in the original sentence.

The defendant and his defense counsel's grounds of appeal are also examined.

1. Summary of the first instance judgment and the original judgment

In full view of the evidence adopted in relation to the facts charged in this case, the first instance court affirmed the judgment of the court below which affirmed the fact that the defendant, in collusion with the non-indicted 1, did not produce or sell pseudo petroleum products used as fuel for gasoline combustion engines in a manner such as mixing petroleum products with other petroleum products or petrochemicals with petrochemicals, or mixing with other petrochemicals, etc. on the ground that the non-indicted 1 did not sell or manufacture or sell pseudo petroleum products in collusion with the non-indicted 1, but the defendant, in the middle of July 2000 to the first of December 200 of the same year, purchased sloak and Toluene at the factory household of the company where the representative director is located, and purchased slorates and Toluene in a mixture with about six to four percent of petroleum products, and maintained the judgment of the court below which found that the non-indicted 17, dilution agents were manufactured and sold at approximately 77,865,515,00 won, and then 30,000 won of the Petroleum Business Act.

2. Judgment of the Supreme Court

A. As to the assertion on whether Article 26 of the Petroleum Business Act and Article 30 of the Enforcement Decree of the same Act are unconstitutional or unlawful

Article 26 of the Petroleum Business Act prohibits anyone from producing and selling pseudo petroleum products by mixing petroleum products with other petroleum products or mixing petroleum products with petrochemicals. Article 30 of the Enforcement Decree of the Petroleum Business Act prohibits anyone from using gasoline or light oil as fuel (excluding energy provided for in each subparagraph), and the machinery and vehicles provided for in each subparagraph of Article 2 of the Enforcement Decree of the Automobile Management Act (hereinafter referred to as “motor vehicles, etc.”) using gasoline or light oil as fuel. The purport of prohibiting the act of producing and selling pseudo petroleum products is to maintain the quality of gasoline or light oil which is intended to be used as fuel. Ultimately, if it is prohibited from producing and selling pseudo petroleum products with no intention to use gasoline or light oil as fuel, it is reasonable to interpret the prohibition of excessive use of Article 37(2) of the Automobile Management Act or 208 of the Enforcement Decree of the Petroleum Business Act as fuel. Thus, it is reasonable to limit the use of pseudo petroleum products as fuel.

In light of the above interpretation premise, the provisions of Article 26 of the Petroleum Business Act and Article 30 of the Enforcement Decree of the same Act exceed the limit of delegated legislation, as otherwise alleged in the ground of appeal, and they cannot be viewed as a provision against the principle of proportionality or the constitutional principle of proportionality, the principle of excessive prohibition, or the restriction on freedom of occupation. The argument in the grounds of appeal

B. As to the assertion on violation of the rules of evidence and illegality

Although the court below found the defendant guilty of the facts charged in this case on the premise of other statutory interpretation, according to the evidence duly examined and adopted by the court of first instance and the protocol of interrogation of the suspect about the defendant in preparation of the prosecutor's protocol as to the defendant, even though the above legal interpretation is premised on the above interpretation, it is sufficiently recognized that the defendant produced and sold pseudo-dilution products in this case, which are pseudo petroleum products, for this purpose, even though he was aware that gasoline or light oil is used as fuel, and therefore, the court below's decision that affirmed the judgment of the court of first instance which found the defendant guilty of the above facts charged is just in its conclusion. In addition, in light of the contents and circumstances of the crime in this case, it cannot be said that the crime constitutes a legitimate act of the business operator or that it could not be expected that the crime in this case constitutes a legitimate act of the business operator or did not commit the crime in this case. Accordingly, we do not accept the allegation in the grounds of appeal

3. Therefore, the appeal shall be dismissed and part of the detention days after the appeal shall be included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yoon Jae-sik (Presiding Justice)