2015No796 Violation of the Petroleum and Petroleum Substitute Fuel Business Act

A

Defendant

Lee Jong-chul (Public Prosecutor Acting for, indictment for, and public trial)

Attorney Kang Han-sung (Korean)

Daejeon District Court Decision 2014Gohap1309 Decided February 11, 2015

October 8, 2015

The lower judgment is reversed. The Defendant is not guilty.

1. The summary of the grounds for appeal (definites) at the time of the instant case ** There was a mixture of light oil in light of the light oil stored in the oil vehicle tank about 10%, but it is not a mixture for the purpose of selling fake petroleum products by the Defendant, but a mixture of light oil with oil by negligence.

2. Determination

A. Summary of the facts charged

The defendant is a person who operates 'A gas station' in Chungcheongnam-gun * in Chungcheongnam-gun *.

No one shall manufacture, import, store, transport, keep, or sell fake petroleum products.

Nevertheless, around January 27, 2014, the Defendant kept 400 liters of fake petroleum mixed with light oil, light oil, and oil in the tank of the oil vehicle * The Defendant kept the quantity of 400 liters of fake petroleum, which was parked in the above ASS parking lot.

B. The judgment of the court below

The court below found the defendant guilty of the facts charged of this case by taking account of the evidence in its judgment.

C. Judgment of the court below

However, we cannot accept the judgment of the court below for the following reasons.

1) Article 13 of the Criminal Act provides that an act performed through ignorance of the facts which comprise the constituent elements of a crime shall not be punishable. However, the act performed through ignorance of the facts which comprise the constituent elements of a crime shall not be punishable if there are special provisions in the Act. Article 14 of the Criminal Act provides that an act through ignorance of the facts which comprise the constituent elements of a crime by neglect of normal attention shall be punished only if there are special provisions in the Act. Therefore, even if an administrative regulation is the main constituent element, it may be punishable by an intentional act in accordance with the principle of the Criminal Act, except where there is a clear provision or where it is clear that the criminal negligence is punishable (see Supreme Court Decision 2009Do9807, Feb. 11, 20

Article 44 (3) of the Petroleum and Petroleum Substitute Fuel Business Act (hereinafter referred to as the "petroleum Business Act") provides that "any person who manufactures, imports, stores, transports, keeps, or sells fake petroleum products in violation of Article 29 (1) 1 shall be punished by imprisonment for not more than five years or by a fine not exceeding 200 million won," and Article 29 (1) 1 of the Petroleum Business Act provides that "no person shall manufacture, import, store, transport, keep, or sell fake petroleum products."

An act of manufacturing fake petroleum products under Article 29(1)1 of the Petroleum Business Act includes an intentional element in the act itself (Article 2 subparag. 10 of the Petroleum Business Act provides that "fluoral petroleum products" are manufactured by any of the following methods, regardless of their titles, and are manufactured for the purpose of using them as fuel for automobiles under Article 2 subparag. 1 of the Automobile Management Act and vehicles and machinery prescribed by Presidential Decree or for the purpose of allowing them to use them as fuel for automobiles under Article 2 subparag. 1 of the Automobile Management Act, and vehicles and machinery prescribed by Presidential Decree). Article 44 subparag. 3 of the Petroleum Business Act provides that the act of manufacturing fake petroleum products and other acts of importing, storing, transporting, storing, keeping, or selling fake petroleum products shall be punished concurrently, and there is no explicit penal provision on negligence in connection with the act of storing fake petroleum products.

Ultimately, in order to punish the act of keeping fake petroleum products in custody, it is required to be intentional in accordance with Article 13 of the Criminal Act.

2) The subjective element of the constituent element of a crime refers to the case where the possibility of the occurrence of the crime is uncertain and it is accepted in light of the above circumstances. The possibility of the occurrence of the crime is recognized in order to have dolusent intent, as well as there is an awareness of the possibility of the occurrence of the crime, and furthermore, there is an internal intent to allow the risk of the crime. Whether or not the offender has permitted the possibility of the occurrence of the crime should be determined by considering how the possibility of the crime is assessed by the general public on the basis of the specific circumstances, such as the form of the act and the situation of the act performed outside, without depending on the statement of the offender. In this case, the psychological condition should be confirmed from the offender, and even in such a case, the prosecutor bears the burden of proving the existence of the willful negligence, which is the subjective element of the crime charged. On the other hand, the conviction should be based on evidence with probative value, which makes the judge not have any reasonable doubt, and therefore, if there is no such evidence, it is no choice but to determine the defendant's interest.

3) According to the following circumstances acknowledged by the evidence duly adopted and examined by the lower court, it is difficult to readily conclude that the Defendant, with a conclusive intention, kept fake petroleum products with the Defendant’s storage of fake petroleum products, or that the Defendant had the intent to deliberate on the possibility of keeping fake petroleum products in custody in the process of storing two kinds of petroleum products from the mobile vehicles (**; hereinafter “instant vehicles”) owned by the Defendant and selling them to customers.

A) The instant vehicle may store and keep two kinds of petroleum products in a tank in which oil is stored, so that it can not be mixed with two kinds of petroleum products. However, it is only one main organic and heading (Evidence No. 21-24 of the evidence record). At the time of the instant vehicle storage tank, the Defendant kept a light oil in front of the instant vehicle storage tank, and the light oil in the following partitions.

B) On January 27, 2014, at the Daejeon Chungcheongnam Headquarters, the Institute collected samples from three parts of the A gas station operated by the Defendant (the front partitions and the rear partitions, the storage tank in the A gas station) from among the instant vehicle storage tanks, and on February 5, 2014, it was proved that among the said three samples, the samples collected from the following parts of the instant vehicle storage tank were mixed with approximately 10% of the light oil (Evidence 5, 6 pages of the evidence record).

C) The sample collected from 2 parts of the sample (the front partitions, the storage tank in the gas station) of 3 parts of the sample collected from the gas station operated by the Defendant was judged as normal.

D) In the process of supplying two kinds of petroleum products to crosssections, both main and strings may be mixed (Evidence No. 57 of the evidence record, No. 49 of the trial record). In addition, two types of petroleum products in a tank stored in the instant vehicle due to the number of valves operating rooms or leashings may be mixed with one another (Evidence No. 26 of the evidence record).

E) As pointed out by the lower court, the fact that the degree of mixing light oil with light oil exceeds 10% and that in the instant vehicle structure, where two kinds of petroleum products are stored, and the Defendant had already known that certain parts of the said petroleum products are to be mixed with one another, the fact that the Defendant had already known that the said products had no choice but to be mixed with one another is an indirect fact that the Defendant had dolusent intent with respect to the storage of fake petroleum products.

① However, in order to prevent the mixture of petroleum products stored in the instant vehicle, the Defendant had consistently been in the investigative agency and the lower court’s trial. However, in order to eliminate 30 liters remaining in the instant vehicle by using the instant vehicle with a limited liability, the Defendant, who had been aware of the fact that he had been in possession of the instant vehicle, provided that the Defendant would not be able to have any more than 6 liters remaining in the storage tank of the instant vehicle. The Defendant, who had been in possession of 10 liters remaining in the instant vehicle, stated that the Defendant would not be able to be able to have any more confluences than 1, 12, 62, and 63 of the instant vehicle’s records on the ground that the Defendant had been in possession of the instant vehicle, and that the Defendant could not be able to have any more confluences than 1, 300 of the instant vehicle’s new evidence that he had been in possession of the instant vehicle.

3. Conclusion

Since the appeal by the defendant is well-grounded, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and the following is ruled again.

【Discretionary Judgment】

The summary of the facts charged against the defendant is as described in subparagraph 2-A(a).

This constitutes a case where there is no proof of crime as seen in Article 2-3(c) of the Criminal Procedure Act. It is decided as per the disposition that the defendant is acquitted in accordance with the latter part of Article 325 of the Criminal Procedure Act.

The presiding judge, the Yellow Judge;

Judges Oio-rayia

Judges Cho Jeon-soo

(i) The method of mixing petroleum products with other petroleum products, the method of mixing petroleum products with petrochemicals, and petrochemicals;

the method of mixing petrochemicals with other petrochemicals, petroleum products or materials containing carbon and hydrogen with petrochemicals;

method of mixing means the method of mixing.