(영문) 서울남부지방법원 2015.5.21.선고 2015노185 판결

In full view of the fact that the Internet shopping mall site operated by the defendant takes the same settlement method as that of the general shopping mall, marketing is not different from that of the general importer, and that information about overseas sellers is not accurately posted in the sale process, it is practically exclusive rights, induce purchase through active product advertisements, and orders are made by overseas enterprises after the defendant received payment from the company operated by the defendant, the defendant is not an import agent but an importer (hereinafter referred to as "importer") who intends to import drugs, etc. under Article 42 (1) of the former Pharmaceutical Affairs Act (amended by Act No. 13219, Mar. 15, 2015; hereinafter referred to as the "former Pharmaceutical Affairs Act"). Since the defendant's act of bringing drugs, etc. in itself is an import act, it does not affect the establishment of a violation of the Pharmaceutical Affairs Act even if the defendant delivered goods to the customer. Nevertheless, the court below erred by misapprehending the legal principles, thereby pronounced the defendant not guilty.

2. Determination

A. Article 42 (1) of the former Pharmaceutical Affairs Act provides that "a person who intends to import drugs, etc. (hereinafter referred to as "importer") shall obtain permission or report from the Minister of Food and Drug Safety for each item as prescribed by Ordinance of the Prime Minister, and Article 68 (5) of the same Act provides that "no person shall advertise the name, manufacturing method, efficacy, or performance of drugs, etc. unless he/she obtains permission or makes a report in accordance with Article 31 (2), (3) or 42 (1)." Thus, the issue of this case is whether the defendant who operates the Internet shopping mall site falls under "importer pursuant to the former Pharmaceutical Affairs Act in advertising specific quasi-drugs as stated in the facts charged."

B. Whether an importer constitutes a "importer" under Article 42 (1) of the former Pharmaceutical Affairs Act shall take into account the whole process of transaction, such as contractual relationship between the parties to the transaction, the relationship of payment of goods, the distribution channel, etc. The lower court determined that ① upon receipt of an application from a customer for purchase of goods, the Defendant received the payment of the amount calculated by adding the delivery charge (in Germany, the export clearance charge + the international air transportation charge + the import clearance charge + the import clearance fee + the domestic sales charge) calculated by weight to the individual price of the goods as the settlement amount; ② the price of the goods is notified that the price of the goods can be changed on the basis of the three days or exchange rates of the local shopping mall; ② the goods requested for the purchase may be directly delivered from the German company to the customer via customs clearance; ③ the Defendant managed the imported consignment goods ordered by the customer separately from the shipment of the goods at the overseas logistics center and the shipment stage; ④ the Defendant also at the Internet shopping mall site, thereby failing to exchange or destroy the goods by proxy; and ④ the Defendant's sales service type.

C. The above reasoning of the judgment of the court below is as follows, which is acknowledged by evidence duly adopted and investigated by the court below, i.e., (i) whether to import products is based on the decision of the customer; (ii) the purchase price of products is determined according to the local price of foreign sales enterprises, not the price determined by the defendant; (iii) the defendant transfers the value of goods excluding the purchase commission from the customer's purchase price to the German company; (iv) the defendant purchased foreign products on his own account and did not sell profits on his/her own account; and (v) the import agent did not pay the commission to a foreign sales enterprise, instead of selling orders on behalf of the foreign sales enterprise; and (v) the import agent takes the method of settlement such as general shopping mall for the convenience of the customer; or (iv) in the process, it can be refunded at the time of the occurrence of a certain reason; and (v) marketing is a type of business that can be used to promote the sales of the product by importing the product in bulk without the defendant's request.

D. In light of the above facts, the interpretation of penal provisions must be strict, and the interpretation of the explicit provision to the disadvantage of the defendant is not permitted as it is against the principle of no punishment without the law (see, e.g., Supreme Court Decision 2007Do5222, Jun. 26, 2008). In light of the above facts, since goods are delivered directly from the German company through customs clearance to the customer, the defendant cannot be deemed as the owner of the goods, and the importer of the goods and the taxpayer are non-defendants. Nevertheless, merely because the defendant is involved in the delivery process through customs clearance, it is against the principle of no punishment without the law to punish the defendant as "importer" under Article 42 (1) of the former Pharmaceutical Affairs Act. Therefore, the judgment of the court below that the defendant cannot be deemed as "importer" under Article 42 (1) of the former Pharmaceutical Affairs Act is justifiable, and there is no error of law by misunderstanding facts or by misunderstanding legal principles as argued by the prosecutor, which affected the conclusion of the judgment

3. Conclusion

Therefore, the prosecutor's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.