(영문) 서울서부지방법원 2015. 4. 20. 선고 2015고단341 판결

1. Defendant 1 shall be punished by imprisonment for a year and six months and by a fine of ten million won, and by a fine of three million won for each of the defendants 2, 4, and 5.

2. In a case where Defendant 1, Defendant 2, Defendant 4, and Defendant 5 did not pay the above fine, Defendant 1, Defendant 2, Defendant 4, and Defendant 5 are confined in a workhouse for the period calculated by converting KRW 100,000 into one day.

3.Provided, That with respect to Defendant 1, the execution of the above imprisonment shall be suspended for a period of two years from the date this judgment becomes final and conclusive.

4. To order the provisional payment of an amount equivalent to the above fines against Defendant 1, Defendant 2, Defendant 4, and Defendant 5.

5. Of the facts charged against Defendant 1, each violation of the Food Sanitation Act listed in the separate sheet of crime (4) due to the issuance of false sexual statements, each violation of the Act on Testing and Inspection in the Food and Drug Industry as listed in the separate sheet of crime (5), each violation of the Act on Testing and Inspection in the Food and Drug Industry as listed in the separate sheet of crime (5), Defendant 3 (large-board: Defendant 2) and Defendant 3 (large-board: Defendant 2) are acquitted, respectively.

6. Of this judgment, the reasons for not guilty part against Defendant 1 and Defendant 3 (Defendant 2) shall be publicly notified.

Criminal facts

Defendant 1 is the representative director of Sungnam-gu, Seoul Special Metropolitan City ( Address 1 omitted), which is designated by the Minister of Food and Drug Safety as a food sanitary inspection institution and an institute for livestock product sanitary inspection (the name of which was changed to “testing and inspection institution” and “livestock product testing and inspection institution” due to the amendment of this Act) and conducts an inspection of food, livestock products, etc., and is the representative director of Nonindicted Co. 1 (hereinafter “Nonindicted Co. 1”).

○ Defendant 2 is a person operating “△△△ Food,” who manufactures and sells food benefits, etc. in Seongbuk-gu, Seongbuk-gu, Seoul Special Metropolitan City ( Address 2 omitted);

○ Defendant 4 changed the name of Nonindicted Co. 3 (hereinafter “Nonindicted Co. 4”) located in the Hamsung-si ( Address 3 omitted) at Kimpo-si, and was working as the head of the quality control team at Nonindicted Co. 5’s representative director;

Defendant 5 is a person who serves as the head of the quality control team in the non-indicted 6 corporation located in the seafarers' side of the Incheon Si-Si-si ( Address 4 omitted).

1. Defendant 1

(a) Violation of the Food Sanitation Act;

No food sanitary inspection institution designated by the Minister of Food and Drug Safety as an institution that conducts food sanitary inspections shall issue a false report on food sanitary inspections intentionally or by gross negligence in order to ensure the safety of foods, etc. and to verify harmful foods, etc.

On April 10, 2014, at the office of the above non-indicted 1 company, the defendant requested a micro-organism inspection on a steamed bed, a food manufacturing business entity to inspect a micro-organism for a steamed bed, and inspected the same item. The defendant applied "Tri Military Law (n=5)" according to the food standards and specifications publicly notified by the Minister of Food and Drug Administration, and entered the results in the test report, and issued a false report on food sanitary inspection over 153 times, as shown in the attached Form (1).

(b) Livestock Products Sanitary Control Act;

No institute for livestock product sanitary inspection designated by the Minister of Food and Drug Safety shall issue a false inspection result intentionally or by gross negligence.

피고인은 2014. 4. 17.경 위 공소외 1 회사 사무실에서, 공소외 7로부터 ◈◈◈◈◈◈요거트에 대한 대장균군 검사를 의뢰받고 대장균군 항목을 검사하면서 축산물 기준 및 규격에 정해져 있는 미생물 실험 방법인 ‘삼군법(n=5)' 방법을 따르지 않고 그 일부 검체만을 검사하고도 시험성적서에는 5개의 검체 모두를 각각 검사하여 적합 시험성적서를 발급한 것처럼 검사성적서를 거짓으로 발급한 것을 비롯하여 2014. 4. 17.경부터 2014. 7. 28.경까지 별지 범죄일람표(2) 기재와 같이 177회에 걸쳐 검사성적서를 거짓으로 발급하였다.

C. Violation of the Act on Testing and Inspection in the Food and Drug Industry

No testing and inspection agency designated by the Minister of Food and Drug Safety as an institution to perform testing and inspection affairs professionally and efficiently shall issue a false test and inspection report intentionally.

On July 31, 2014, the Defendant issued a false test and inspection report 597 times from July 31, 2014 to January 22, 2015, including issuing a false test report as if he/she inspected all of five autopsys and issued the test report as if he/she had issued the test report as stated in the attached Table of Crimes (3) from July 31, 2014 to January 31, 2015, although the Defendant was requested by Nonindicted 8, a food manufacturing business entity, to inspect the germs of “non-indicted 9 freezing 9” on food standards and specifications.

2. Joint criminal conduct by Defendants 1 and 2

Foods or food additives, the standards and specifications of which are determined by the notification, etc. of the Minister of Food and Drug Safety shall be manufactured, imported, processed, used, cooked, or preserved in accordance with such standards, and foods or food additives that fail to meet such standards and specifications shall not be sold or manufactured, imported, processed, used, cooked, stored, subdivided, transported, preserved, or displayed for sale.

Defendant 1, around December 31, 2014, at the office of the above non-indicted 1, Defendant 1, as a result of the self-inspection of △△ Food (production on December 31, 2014) that was requested by Defendant 2 to inspect the △△ Food (production on December 31, 2014), discovered spawn exceeding seven times the standard values in the spawn item, resulting in failure to comply with the standards and specifications set forth in the food code.

Although Defendants are not allowed to sell food in violation of the standards and specifications set forth in the Food Code, Defendant 1 conspiredd with employees of Nonindicted Company 1 to re-examine at will after undergoing a new autopsy from △△ Food, and issued test results on January 12, 2015, and Defendant 2 sold all products manufactured on December 31, 2014.

Accordingly, the Defendants conspired to sell 1.5L 1.5 36, 571,200 won, which does not meet the standards and specifications, to the Defendants.

3. Joint criminal conduct by Defendants 1 and 4

Defendant 1, around February 28, 2014, at the office of Nonindicted Co. 1, 2014, the result of the self-inspection conducted by Nonindicted Co. 3 on the “Seoul Special Metropolitan City, Do Seoul Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Development Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City

Although Defendants are not allowed to sell food in violation of the standards and specifications set forth in the Food Code, Defendant 1, through employees of Nonindicted Company 1’s business, voluntarily undergo a reinspection and issued a test report stating “conformity” on May 2, 2014, and Defendant 4 sold the entire product manufactured on February 28, 2014.

As a result, the Defendants conspired to sell 300 per kilograms per 1 kilogram, 1,620,000 won, “Seoul Metropolitan City Do Do Do Do Do Do Do Do Do Do do Do Do Do Do Do Do do Do Do Do

4. Joint criminal conduct by Defendants 1 and 5

Defendant 1, around July 16, 2014, at the above Nonindicted Company 1’s office, the result of self-quality inspection on the “meat (production on July 7, 2014)” products, which Nonindicted Company 6 requested for inspection, was found to have been detected by the same group, and thereby, found that Defendant 1 violated the standards and specifications set forth in the food code.

Although Defendants were not allowed to sell food in violation of the standards and specifications set forth in the Food Code, Defendant 1 conspiredd with Nonindicted Company 1’s business employees to re-examine at will after receiving a new inspection body from Nonindicted Company 6, and issued a test report on July 28, 2014, and Defendant 5 sold all products manufactured on July 7, 2014.

As a result, the Defendants conspired to sell 60g unit 4,266, 857,466 won, which does not meet the standards and specifications (production on July 7, 2014).

Summary of Evidence

1. Each legal statement of the defendant 1, 2, 4, and 5

1. Each prosecutor's protocol of interrogation of the suspect against Defendants 1, 2, 4, and 5

1. Each prosecutor’s protocol on Nonindicted 10, Nonindicted 11, Nonindicted 12, Nonindicted 2, and Nonindicted 13

1. Each written statement of Nonindicted 14 and Nonindicted 15

1. Investigation report (the definitions of "Tri-Gun Act" among the methods of testing microorganisms, and investigation report (the confirmation of the period of amendment (n=5) in accordance with the Food Sanitation Act and the method of inspection of micro-organism (n=5);

1. Examination-related documents (Investigation Record 516, 517 pages), meeting data (Investigation Record 562 pages), test report (Investigation Record 851-8 pages), data inappropriate (Investigation Record 903 pages);

Application of Statutes

1. Article applicable to criminal facts;

A. Defendant 1: Subparagraph 2 of Article 95 and Subparagraph 2 of Article 27 of the former Food Sanitation Act (Amended by Act No. 11985, Jul. 30, 2013); Articles 45(2)9 and 20(6)2 of the former Livestock Products Sanitary Control Act (Amended by Act No. 11985, Jul. 30, 2013); Articles 28(1)2 and 6 of the Act on Testing, Inspection, etc. in the Food and Drug Industry; Articles 95(1) and 7(4) of the Food Sanitation Act; Article 30 of the Criminal Act

B. Defendant 2, Defendant 4, and Defendant 5: Article 95 Subparag. 1 and Article 7(4) of the Food Sanitation Act, Article 30 of the Criminal Act

1. Selection of punishment;

(a) Defendant 1: Imprisonment with prison labor and a fine concurrently;

B. Defendants 2, 4, and 5: Selection of a fine

1. Aggravation for concurrent crimes;

Defendant 1: former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act

1. Invitation of a workhouse;

Defendants 1, 2, 4, and 5: Articles 70 and 69(2) of the Criminal Act

1. Suspension of execution;

Defendant 1: Article 62(1) of the Criminal Act (The following favorable circumstances are considered as stated in the reasons for sentencing)

1. Order of provisional payment;

Defendant 1, Defendant 2, Defendant 4, and Defendant 5: Article 334(1) of the Criminal Procedure Act

Reasons for sentencing

1. Defendant 1’s act of undermining the trust of the inspection result of a quality entrustment inspection conducted by an inspector, who is essential for the safety of food and livestock products, for the purpose of identifying harmful food, is highly responsible for the crime in that the act of undermining the consumer confidence in food and brings about apprehensions in daily diet and health of the people. Defendant 1 instructed employees of the company to conduct inspection by a simple method, unlike the regulations for a long period of time, and issued at least 900 false test results in order to reduce expenses. During that process, Defendant 1 was issued with a false statement of transactions to avoid surveillance conducted by the supervisory authorities, and issued a new test report by changing the results of the inspection to arbitrarily conduct a reinspection on the food from which the inappropriate result was produced to secure customers: Provided, That the case where a reinspection was conducted on the food from which the result of the inspection was inappropriate is only four cases where the examination was conducted on the food from the result of the inspection, not on the other examination and inspection method related to the food, but on the other hand, it is not consistent with the standards and specifications of punishment of the relevant product.

2. Defendant 2, Defendant 4, and Defendant 5 are not much sold, there is no actual damage, there is no criminal record of initial crime or a fine, and there is no criminal record of a more severe punishment than a fine. In light of the circumstances leading up to the instant crime, profits accrued therefrom, other Defendants’ age, character and conduct, environment, etc., the punishment as ordered shall be determined by taking into account the following factors:

The acquittal portion

1. From among the facts charged against Defendant 1, each violation of the Food Sanitation Act listed in the separate sheet of crime (4) due to the issuance of false sexual records, and each violation of the Act on Testing, Inspection, etc. in the separate sheet of crime (5) listed in the separate sheet of crime (5)

A. Facts charged

Defendant 1 is the representative director of Nonindicted Company 1 who inspects food, livestock products, etc. as stated in the above facts of crime.

(1) Violation of the Food Sanitation Act

No food sanitary inspection institution designated by the Minister of Food and Drug Safety shall issue a false report on food sanitary inspection, intentionally or by gross negligence, in order to ensure the safety of food, etc. and to verify harmful food, etc.

On April 22, 2014, the Defendant: (a) requested Nonindicted Co. 16 to inspect the micro-organism on the “probial products” from Nonindicted Co. 16, a food manufacturing business company; and (b) inspected the items of “probial and its know”; (c) conducted experiments, but made it impossible for the Plaintiff to read as such, and issued a false statement of fact by stating that it was appropriate as if he/she was not detected, even though he/she was unable to read as such; and (d) issued a false statement of fact on seven occasions from April 22, 2014 to June 22, 2014, such as the list of crimes (4) as indicated in the attached Table of Crimes (4).

(2) Violation of the Act on Testing and Inspection in the Food and Drug Industry

No institution for livestock product sanitary inspection designated by the Minister of Food and Drug Safety to secure the safety of food, etc. and to verify harmful food, etc. shall issue any false test or inspection report intentionally.

On October 15, 2014, the Defendant: (a) requested Nonindicted Co. 17 to inspect the micro-organism on the product of “ exclusive dedicated kimchi” from Nonindicted Co. 17, a food manufacturing company; and (b) inspected the items of “biological shock and its know”; (c) conducted the experiment, but the researcher was unable to read as it was inappropriate, and issued a false sexual statement on four occasions from October 15, 2014 to December 10, 2014; and (d) issued a false test report as indicated in the list of crimes (5).

B. Determination

The facts charged in subparagraph (1) of the above Article 95 and subparagraph 2 of Article 27 of the former Food Sanitation Act (amended by Act No. 11985, Jul. 30, 2013; hereinafter “former Food Sanitation Act”), which constitute a crime that falls under Article 95 subparagraph 2 of the same Article and subparagraph (2) of the same Article, and Article 27 of the same Act, and the food sanitation agency’s issuance of a report on a false food sanitation inspection. The facts charged in subparagraph (2) of the above Article 28 (1) of the Act on Testing and Inspection for Food and Drug Industry (hereinafter “Examination and Inspection Act”) constitute a crime that falls under subparagraph 2 of Article 28 (1) of the same Act, and the elements of the examination and inspection agency are to issue “an false test and inspection report.”

The provisions related to the designation of food sanitation institutions under the Gu Food Sanitation Act, food sanitary inspections by food sanitation agencies, the issuance of sexual reports thereon, and the designation of testing and inspection institutions under the Testing and Inspection Act, and the testing and inspection by testing and inspection institutions, and the issuance of testing and inspection reports related thereto shall be as specified in the relevant provisions.

(1) According to Article 24 of the former Food Sanitation Act, food sanitary inspection institutions are classified into “food sanitary inspection” which is an inspection of standards, specifications, etc. under Articles 7 and 9 of the former Food Sanitation Act, i.e., food sanitary inspection institutions, which conduct food sanitary inspection of imported food, etc. under Article 19(2) of the former Food Sanitation Act (hereinafter “import inspection”) at the request of the Minister of Food and Drug Safety, and “food sanitary inspection of foods, etc. at a place of business under Article 22(1) of the former Food Sanitation Act (hereinafter “food sanitary inspection order”), and “food sanitary inspection of a person entrusted with quality inspection” under Article 31(2) of the former Food Sanitation Act (hereinafter “self-quality inspection”), and food sanitary inspection institutions are classified into “food sanitary inspection of a person entrusted with quality inspection” and “food sanitary inspection of a person entrusted with quality inspection” according to the scope of business. However, Article 27 subparag. 2 of the former Food Sanitation Act provides that food sanitary inspection institutions violate the provisions of Article 19(2).

(2) However, Article 28(1)2 of the Testing and Inspection Act provides that a person who has issued or notified a false test or inspection report intentionally by a testing and inspection agency designated pursuant to Article 6 of the Testing and Inspection Act shall be punished. Although the test or inspection report issued by a literally does not require that the test or inspection report be subject to the test or inspection report concerning the "food Sanitation Inspection", it seems that the relevant provision of the former Food Sanitation Act was deleted upon the enactment of the Act, and that the amendment was made to uniformly apply to the test or inspection in many fields, which is limited only to the food, etc., and that it does not purport to provide any content different from that of the provisions of the former Food Sanitation Act.

(3) According to Article 27 subparag. 4 of the former Food Sanitation Act, Article 28 and attached Table 10 of the Enforcement Rule of the Food Sanitation Act provide that an inspection shall be conducted within the scope of inspection duties, equipped with certain inspection facilities and inspectors, a written inspection record shall be kept for three years, and where the result of self-quality entrustment inspection is inappropriate, the scope, method, procedure, and matters to be observed, such as notification to the Minister of Food and Drug Stabilization, shall be notified to the Minister of Food and Drug Safety. In reality, it is reasonable to apply the former Food Sanitation Act only to an order of restriction on quality inspection as well as an order of restriction on food sanitary inspection by an entity or a person entrusted with self-quality inspection or a private research institute, other than an inspection institution designated under the former Food Sanitation Act, to request an inspection on the standards, standards, ingredients, etc. of food, etc. under the name of the entity or an inspection institution entrusted with self-quality inspection or an inspection institution designated under the former Food Sanitation Act. However, it is reasonable to apply the former Food Sanitation Sanitation Act regulations only to the designated inspection institution subject to such inspection inspection.

(4) Further, the Enforcement Rule of the Testing and Inspection Act and the Enforcement Rule of the Food Sanitation Act provide similar provisions with regard to inspection duties, procedures, and matters to be observed by a testing and inspection institution. In comparison with the provisions of the former Food Sanitation Act and the Enforcement Rule of the former Food Sanitation Act, there seems to be no part specially modified on the premise that the subject of regulation should be expanded for reference. Meanwhile, Article 6 of the Testing and Inspection Act provides that an institution for testing and inspection, such as food, shall be subject to the scope of its business, and shall not be subject to the Food Sanitation Act, and shall not be subject to the order of prohibition of testing and inspection under Article 7, 9, 19-4, and 22(1) of the Food Sanitation Act; Article 7, 9, and 31(2) of the Food Sanitation Act; Article 14 of the Health Functional Foods Act; Article 2(1) of the Enforcement Rule of the Food Sanitation Foods Act and Article 8 of the Food Sanitation Inspection and Inspection Act, for the purpose that it shall not be subject to inspection or inspection inspection by mistake, and shall not be subject to the designated inspection inspection institution.

As can be seen, Article 27 subparagraph 2 of the former Food Sanitation Act only provides that false test results subject to punishment under the language and text of the same Act shall be deemed to be related to "food sanitary inspection". Since the above provision was amended under Article 28 (1) 2 of the former Food Sanitation Act, the provisions concerning inspection duties under the former Food Sanitation Act and the former Enforcement Rule of the Food Sanitation Act, and the former Enforcement Rule of the Food Sanitation Act and the Testing and Inspection Act, are interpreted to be subject to the duty of an inspection institution only to regulate quality entrusted testing, import inspection, and inspection order inspection. In light of the general principle of the principle of no punishment without law prohibiting extended interpretation or analogical interpretation of penal laws, the term "examination and inspection report" or "examination and inspection report" shall be deemed not to be related to the inspection duties under the former Food Sanitation Act, consistently with the interpretation of the regulations concerning the inspection duties, the quality of inspection for which the former Food Sanitation Act and the former Food Sanitation Act provide for the inspection order, and it shall not be deemed to be related to the inspection inspection, and the same shall not apply only to the inspection inspection.

However, each of the above facts charged constitute a test report for self-quality inspection under Article 31(2) of the former Food Sanitation Act, which constitutes a test report for self-quality inspection, and each of the above facts charged constitutes a test report for self-quality inspection under Article 31(2) of the former Food Sanitation Act, regardless of the self-quality inspection, and the test report for each of the above facts charged constitutes a test report for reference inspection requested by the relevant food manufacturing company. Thus, each of the above facts charged on the premise that each of the above facts charged falls under the "sexual report" under Article 27 subparag. 2 of the former Food Sanitation Act through Article 28(1)2 of the former Food Sanitation Act constitutes a crime without proof.

Therefore, in accordance with the latter part of Article 325 of the Criminal Procedure Act, the defendant 1 shall be acquitted and the summary of the above facts charged shall be announced in accordance with Article 58 (2) of the Criminal Act.

2. Of the facts charged against Defendant 1, the part concerning the violation of the Food Sanitation Act due to the sale of food that does not meet the standards and specifications in collusion with Defendant 3 (Defendant 2) and the part concerning the facts charged against Defendant 3 (Defendant 2)

A. Facts charged

Defendant 1 is the representative director of Nonindicted Company 1 who conducts the inspection of food, livestock products, etc. as stated in the above facts constituting the crime, and Defendant 3 (Defendant 2) is a person who operates the “Nonindicted Corporation 18” which manufactures and sells products such as fruit, etc. from the Dobong-si ( Address 5 omitted) in Gyeyang-si.

피고인 1은 2014. 11. 10.경 위 공소외 1 회사 사무실에서, ‘공소외 18 법인’(대표 피고인 3(대판:피고인 2))이 검사 의뢰한 ‘▷▷▷▷▷▷▷라이스칩’(생산일자 2014. 9. 9.), ‘▷▷▷▷▷▷▷뻥과자’(생산일자 2014. 10. 28.), ‘♤♤스낵’(생산일자 2014. 10. 31.) 제품(이하 위 세 가지 제품을 통틀어 ‘2014. 11. 10.자 검사의뢰 제품’이라고 한다)에 대하여 자가품질검사한 결과 세균수 항목에서 기준치 이상의 세균이 검출되는 바람에 부적합 결과가 나왔다.

Although Defendants were not allowed to sell foods in violation of the standards and specifications set forth in the Food Code, Defendant 1, through employees of Nonindicted Co. 1’s business, voluntarily re-examineed the foods by undergoing an inspection conducted by the said farming association corporation through the employees of Nonindicted Co. 1’s business, issued the test report stated in “conformity” on November 18, 2014, and Defendant 3 (Defendant 2: Defendant 2) sold all the above products around that time.

이로써 피고인들은 공모하여, 기준과 규격에 맞지 아니하는 ‘▷▷▷▷▷▷▷라이스칩’(생산일자 2014. 9. 9.) 1,000봉지 합계 570,000원, ‘▷▷▷▷▷▷▷뻥과자’(생산일자 2014. 10. 28.) 140봉지 합계 88,200원, ‘♤♤스낵’(생산일자 2014. 10. 31.) 250봉지 합계 167,500원, 총 합계 825,700원 상당을 판매하였다.

B. Determination

According to the statements made by Nonindicted Party 2 and Defendant 3 (Counter-board: Defendant 2) in the investigative agency, the test results of the test of the products requested for inspection on November 10, 2014 can be acknowledged that the spawn of spawn exceeded the standard determined by the food code.

However, according to the statement at the investigative agency and this court of law and a copy of each test report (Investigation Record 94-948 pages), Defendant 3 (Defendant 2) requested an inspection to another self-quality entrustment inspection agency which is not a non-indicted company 1, and it was not judged inappropriate once for the same product. The inspection agency changed the inspection agency to the non-indicted 1 company and applied to the non-indicted 2, who is an employee of the non-indicted company 1, to the effect that it is inappropriate to judge the quality entrustment inspection of the product for which the inspection was requested on November 10, 2014 and the result of the inspection cannot be trusted, and the non-indicted 2 sent to the non-indicted 3 (Defendant 2) the inspection of the product for which the inspection was requested on November 10, 2014 and conducted a reinspection again on the product for which the prosecutor was requested on November 10, 2014, and the judgment on the quality of the product was again made on October 14, 2014.

Comprehensively taking account of the foregoing circumstances, it cannot be readily concluded that all products requested for inspection of November 10, 2014 fall under food that do not meet the standards set by the food code, and there is no other evidence to acknowledge the fact that such products were discovered once more than the standards set by the food code for products requested for inspection of November 10, 2014.

Therefore, since this part of the facts charged against Defendant 1 and Defendant 3 (Defendant 2) falls under the case where there is no proof of a crime, the judgment of innocence is made under the latter part of Article 325 of the Criminal Procedure Act, and the summary is announced under Article 58(2) of the Criminal Act.

【Attached Provisions, etc. omitted】

Judges Jinjin-ri

심급 사건

서울서부지방법원 2015.4.20.선고 2015고단341

-서울서부지방법원 2015.11.26.선고 2015노634

-대법원 2016.6.9.선고 2015도19626

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