Defendant 1 and one other

Defendants

Mak-si(s) and Kim Young-si(s)(s)

Attorney Ha Young-hee

Seoul Eastern District Court Decision 2015Gohap3572 Decided May 2, 2016

The Defendants’ appeal is dismissed.

1. Summary of grounds for appeal;

A. misunderstanding of facts or misunderstanding of legal principles

The end of the carcopon sold by the defendants is not a functional food but a "raw material" of functional health foods, as in the tea, and if so, Defendant 2 Co., Ltd. (hereinafter referred to as the "Defendant Co., Ltd.") who has reported the import business of functional health foods supplies it to manufacturers of functional health foods, etc., it does not require separate reports on the sale business of functional health foods, which is naturally included within the scope of importers' business

Even if the report on the sale of functional health foods is required, the defendant 1 did not recognize the need for a separate report on the sale of functional health foods and did not recognize the illegality of the report.

Nevertheless, the lower court erred by misapprehending the facts or by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment.

B. Unreasonable sentencing

The sentence (Defendant 1: a fine of KRW 2 million, Defendant 2: a fine of KRW 3 million: a fine of KRW 3 million) declared by the court below is too unreasonable.

2. Determination

A. Judgment on misconception of facts or misapprehension of legal principles

(1) As to whether the report on the sale of functional health foods is necessary

㈎ 피고인들은 원심에서도 동일한 취지의 주장을 하였는바, 원심은, 피고 회사가 수입한 ‘차전자피’는 혈중 콜레스테롤 개선과 배변활동에 도움을 줄 수 있는 기능을 가졌으나, 질경이의 껍질 그 자체로서 별도의 제조나 가공을 거치지 아니한 상태이므로, 이는 식품위생법 제2조 제1호 의 ‘식품’이자 건강기능식품에 관한 법률(이하 ‘건강식품법’이라 한다) 제3조 제1호 , 제2호 에 정한 ‘인체에 유용한 기능성을 가진 원료’로 볼 수 있을지언정, ‘건강기능식품’으로 보기는 어려운 반면, 피고 회사가 공소외 주식회사에 의뢰해 만든 ‘차전자피 분말’은 인체에 유용한 기능성을 가진 원료를 사용하여 ‘제조 또는 가공한 식품’으로서 위 법률이 정한 ‘건강기능식품’에 해당하므로, 건강기능식품에 해당하지 않는 ‘차전자피’를 수입하는 행위는 위 법률 제4조 제1항 제2호 에 정한 ‘건강기능식품 수입업’을 행하는 자의 영업 범위에 속한다고 볼 수 없고, 오히려 피고인 1이 위와 같이 수입한 ‘차전자피’를 공소외 주식회사에 의뢰해 가공(분쇄)하여 건강기능식품의 일종인 ‘차전자피식이섬유’를 만들어 건강기능식품 제조업체나 도매업체에 판매한 행위가 위 법률 제4조 제1항 제3호 에 정한 ‘건강기능식품판매업’의 영업 범위에 속한다고 보아야 할 것이어서, 건강기능식품법 제6조 제2항 에 따른 건강기능식품판매업 신고를 별도로 하여야 한다고 판단하였다.

㈏ 원심이 판시한 바와 같이 차전자피 자체가 건강기능식품에 해당하지 아니함은 명백하고, 차전자피를 원료로 하여 소비자가 곧바로 섭취할 수 있도록 만든 최종 제품이 건강기능식품에 해당함은 또한 명백한바, 원재료인 차전자피가 최종 제품이 되는 과정에 있어서 어느 단계에서부터 이를 건강기능식품으로 볼 것인지를 본다.

Before the code of health functional foods publicly notified by the Minister of Food and Drug Safety pursuant to the provisions of the Health Functional Foods Act, “j-electronic skin fibers” is manufactured by crushing teas. The process remaining after crushing teas is divided into certain quantities or combining additives. Considering that it is difficult to regard it as an essential process, it should be deemed that it falls under the health functional foods itself, not just raw materials or raw materials. If it is not interpreted as such, the defendant company can arbitrarily melt teas without any regulation such as sanitation under the Health Functional Foods Act. On the contrary, the result does not need to be regulated by the Quality Inspection Act, and it is contrary to the legislative intent of the Health Functional Foods Act to ensure the safety and quality improvement of the health functional foods, and the process of collecting the same is against the legislative intent of the Health Functional Foods Act to ensure the safety and quality improvement of the foods.

Therefore, as pointed out by the Defendants, it is practically impossible for the Defendant Company to directly purchase the same and take in it as it is. Even if the Defendant Company’s sale of the same constitutes a form in which consumers are able to take by themselves after completing the process of adding other raw materials by manufacturers of functional health foods, etc., this is merely a characteristic of the “raw materials” among functional health foods compared with the “final product,” and such circumstance alone cannot be deemed to be merely a raw material outside the regulatory scope of the functional health foods Act.

Thus, the act of crushinging the "motor vehicle electronic volume" imported by the defendant company and selling the "motor vehicle electronic volume" to manufacturers or wholesalers of health functional foods falls under the scope of business of the "health functional foods sales business" under Article 4 (1) 3 of the above Act. Thus, the report of the health functional foods sales business under Article 6 (2) of the Health Functional Foods Act should be separately completed. Thus, the defendants' assertion of misunderstanding of facts or misunderstanding of legal principles is without merit.

With respect to the recognition of Dor's intention and illegality

The defendants asserted the same purport in the court below. The court below held that in Article 16 of the Criminal Act, "the act of misunderstanding that one's act was not a crime under the Acts and subordinate statutes shall not be punishable only when there is a justifiable reason." Whether there is a justifiable reason should be determined depending on whether the defendants failed to recognize the illegality of one's act as a result of failing to perform his/her intellectual ability even though there was a possibility that he/she could have known the illegality of his/her act if he/she had done so with his/her intellectual ability, and the degree of effort necessary for recognizing the illegality should be determined differently in accordance with the detailed behavior situation, the person's individual awareness ability, and social group to which the actor belongs (see Supreme Court Decision 2005Do3717, Mar. 24, 2006, etc.). In this case, the court below determined that the defendants 1 did not have any legitimate reason to see that he/she had a manufacturer or an electronic dypuling functional food imported by the next electronic live food product or its sale business.

Examining the judgment of the court below in a thorough manner with the evidence duly adopted and examined, the judgment is just and acceptable, and there is no error of misconception of facts or misapprehension of legal principles as pointed out by the defendant.

Therefore, this part of the defendant's assertion of mistake or misunderstanding of legal principles is without merit.

B. Determination on the assertion of unfair sentencing

Although there are circumstances to consider the circumstances leading to the commission of crime, and the necessary report was completed immediately after the crackdown, considering the size of the sold functional health foods, the sentence imposed by the court below is too unreasonable.

3. Conclusion

Since the appeal by the defendant is without merit, it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judge Final Head of the District Court (Presiding Judge)

Note 1) The Defendant asserts that “a tea-type fiber fiber” has become one of the functional raw materials, and this is also nothing more than the raw materials of functional food. However, it is reasonable to view that the above code code sets the manufacturing standards, specifications, and final products with the content of “a tea-type fiber fiber,” and sets the manufacturing standards, specifications, and final products with the content of “a tea-type fiber,” and that the standards are divided into the raw materials and final products with respect to the specifications among them, while the raw materials are separately specified as a tea-type. In light of the fact that the above code code does not have separate items concerning “functional functional food,” the above code does not have separate items concerning “functional functional food,” regardless of the upper classification of “functional raw materials.”