The case holding that the act of publishing an article on the part of a person who sells a punishment through the Internet homepage does not constitute an indication or advertisement "confiscing to cause confusion or confusion with medicine" as prohibited under Article 11 (1) of the former Food Sanitation Act, on the part of the person who sells the punishment on the Internet homepage, stating that the effect of altering the punishment has the effect of treating it such as an empty blood or a

The case holding that the act of publishing a letter on the Internet homepage that a person who sells a punishment has the effect of treating the punishment on an empty blood, livers, etc. with regard to the effect of altering the punishment on the Internet homepage does not constitute an indication or advertisement that is “confiscing to cause confusion or mistake with medicine” prohibited under Article 11(1) of the former Food Sanitation Act (amended by Act No. 8779 of Dec. 21, 2007).

Article 11(1) of the former Food Sanitation Act (amended by Act No. 8779 of Dec. 21, 2007); Article 6(1)2 of the former Enforcement Rule of the Food Sanitation Act (amended by Ordinance of the Ministry of Health and Welfare No. 435 of Jan. 21, 2008)

Defendant

Defendant

Salycera

Attorney Kim Jong-chul

Jeonju District Court Decision 2008Gohap307 decided May 8, 2008

The judgment of the court below is reversed.

The defendant shall be innocent.

The summary of the judgment against the defendant shall be published.

1. Summary of the facts charged and the judgment of the court below

A. Summary of the facts charged

The Defendant is the representative of the homepage (name omitted) homepage (Xn-3robbbb.6m.com). While the Defendant was prohibited from marking or advertising any food, etc. that may cause confusion with the medicine. From April 30, 2007 to September 11, 2007, the Defendant made an indication or advertisement that is likely to cause confusion with the medicine, such as having efficacy in treating diseases, such as the prevention and treatment of an empty blood, the prevention and treatment of an infectious disease, etc.

B. The judgment of the court below

The court below found the above facts charged in accordance with the evidence adopted by it.

2. Summary of grounds for appeal;

A. Legal principles

It is true that the defendant posted the facts about the efficacy of the alteration of punishment on the website of the (name omitted) operated by himself as stated in the facts charged. However, the food sanitation legislation should be interpreted as limited to regulating only the labeling and advertising that directly and mainly aims at treating, preventing, etc. a specific disease, and that it regulates only the labels and advertisements that cause consumers to confuse and mislead as medicine. Since this case has already been widely known, there is no possibility that the alteration of punishment may be confused as medicine from the perspective of ordinary people, the court below convicted the facts charged in this case, thereby affecting the conclusion of the judgment by misapprehending the legal principles on the crime of violating the Food Sanitation Act.

B. Unreasonable sentencing

In light of the circumstances such as the background of this case and the fact that the defendant has no record of punishment for the same kind of crime, the court below's punishment against the defendant is too unreasonable.

3. Determination

Article 11(1) of the former Food Sanitation Act (amended by Act No. 8779 of Dec. 21, 2007; hereinafter “Act”) provides that “in the display of food and food additives, no indication or advertisement likely to cause confusion with medicine shall be made. The same shall apply to the nutritional value, raw materials, ingredients, and usage of food and food additives.” Article 6(1) of the Enforcement Rule of the same Act (amended by Ordinance of the Ministry of Health and Welfare of January 21, 2008) provides that “an indication or advertisement that is likely to cause confusion with medicine” in subparagraph 2 of Article 11 of the Act provides that “an indication or advertisement that constitutes a false indication or an exaggerated advertisement under the provisions of Article 11(1) of the Act shall constitute such an act.”

However, it cannot be deemed that the above provision prohibits all the labeling and advertising of the pharmacological efficacy of food. Even if such labeling and advertising are the same as the labeling and advertising of the effects incidental to food or appearing as a result of nutrition within the essential limitation of the efficacy of food. Thus, the above provision should be interpreted as limited to regulating only both labeling and advertising that directly and mainly aims at treating, preventing, etc. a certain disease with respect to food, etc., and thus, it should be interpreted as regulating only the labeling and advertising that cause consumers to confuse and mislead as medicine. Whether any labeling and advertising goes beyond the limit as food advertising, it should be specifically determined by the law applicable agency based on the average perception of the general public (see, e.g., Constitutional Court en banc Decision 97Hun-Ma108, Mar. 30, 200; Supreme Court Decision 2005Do844, Nov. 14, 2006).

Therefore, according to the records, whether advertisements posted on the homepage of the defendant's (name omitted) cause confusion or misunderstanding as medicine or not, the defendant posted "prevention and treatment of an empty blood, and prevention and treatment of an liver disease" as to the comprehensive effect of alteration on the above homepage. However, as to the composition of a b punishment, the altered b2 is about 10 kinds of general nutrition, and the b2 is lacking in the above vegetative value due to the enhancement of liver function, and the vegetative function of the vegetical vegetical vegetative vegetical vegetative vegetative vegetative vegetative vegetative vegetative vegetical vegetical vegetical vegetative vegetative vegetative vegetical vegetative vegetical vegetative vegetative vegetative vegetative vegetative vegetative vegetative veget.

4. Conclusion

Therefore, since the facts charged in this case constitute a case where there is no proof of crime, the court below erred by finding the defendant guilty, under Article 364(6) of the Criminal Procedure Act, the court below is reversed and it is again decided as follows.

The summary of the facts charged in the instant case is the same as the statement No. 1-A, and this constitutes a case where there is no proof of a crime as stated in paragraph (3) and thus, a not-guilty verdict is rendered pursuant to the latter part of Article 325 of the Criminal Procedure Act, and the summary of the instant judgment is publicly announced pursuant to Article 58

Judges Cho Yong-sung (Presiding Judge)