Whether the act of making mixed mix dust is subject to a license for food processing business provided for in the Food Sanitation Act.

In light of the provisions of Articles 2 and 23(1) of the former Food Sanitation Act (amended by Act No. 3823, May 10, 1986); Article 9(30) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 12000, Nov. 11, 1986); etc., the act of the defendants to purchase and mix brine and brine brine brine brine brine and mix brine brine brine brine brine brine brine brine brine brine brine brine b

Articles 2 and 23 of the Food Sanitation Act (Law No. 3334), Article 9 of the Enforcement Decree of the Food Sanitation Act (Presidential Decree No. 11717)

Supreme Court Decision 81Do164 delivered on December 14, 1982 (Special Arbitration Article 22(2) 1071Gong698No303 delivered on February 22, 1983 (Special Arbitration Article 22(4) Gong702No613 delivered on February 22, 1983)

Defendant 1 and three others

Defendants

Seoul Criminal Court of the first instance (85 High Court Decision 4075)

The judgment of the court below is reversed.

Defendants shall be punished by a fine of KRW 1,000,000.

When the above fine is not paid, the defendants shall be confined in the old house for the period calculated by converting the amount of KRW 5,000 per day into one day.

Of detention days prior to the pronouncement of the judgment below, 80 days for the remaining Defendants and 35 days for the remaining Defendants shall be included in the period of detention in the workhouse.

A total of 18 18 b and 1 flusium (Evidence Nos. 17) (Evidence Nos. 20) including seized mixed clusium, etc. shall be confiscated from each Defendant, etc.

To order the Defendants to pay an amount equivalent to the above fine.

피고인 1, 3의 변호인의 항소이유의 요지는, 피고인들이 메밀가루와 소맥분을 단지 혼합하여 만든 본건 혼합메밀가루는 식품위생법상 식품가공업허가를 받아야 하는 식품이라고는 볼 수 없는 것이며, 또한 검사는 식품위생법 제43조 제1항 , 제3조 제2항 , 제1항 을 적용하여 기소하고 있는 바, 태운 보리가루는 식품위생법상의 첨가물이 아닐 뿐 아니라 그 태운 보리가루가 어느정도 태워진 것인지, 따라서 영양가가 완전히 제거된 것인지 밝혀지지도 않았고 극히 소량을 첨가한 이 사건에 있어서, 식품의 고유가치를 잃게 되었다고 할 수 없음에도 불구하고, 원심은 피고인이 그 판시의 범죄를 저질렀다고 사실을 그릇 인정하고, 식품위생법의 법리를 오해함으로써 판결에 영향을 미친 위법을 범하였다는 취지이고, 피고인 4의 첫번째 항소이유의 요지는 피고인이 원심공동피고인으로부터 혼합메밀가루를 구입할 당시 태운 보리가루를 섞어 제분한 것인 줄은 전혀 몰랐으며 진짜 메밀만 제분한 것인 줄 알고 구입 사용하였음에도 불구하고 원심은 피고인이 그 판시의 범죄를 저질렀다고 사실을 그릇 인정함으로써 판결에 영향을 미친 위법을 범하였다는 취지이고, 피고인 2의 변호인의 첫번째 항소이유의 요지는 피고인이 원심공동피고인으로부터 혼합메밀가루를 구입하여 메밀국수를 만들어 판매한 것은 사실이나, 피고인은 주로 시중에서 메밀껍질을 벗긴 녹쌀을 구입하여 빻거나 조합에서 추천한 메밀가루를 구입하여 사용하였으므로 원심공동피고인으로부터 구입한 혼합메밀가루는 극히 소량에 불과하며, 또한 위 혼합메밀가루를 원료로 하여 메밀냉면만을 제조 판매한 것이 아니라 다른 제품도 제조 판매하였으므로 메밀냉면을 제조한 것은 극히 소량에 불과함에도 원심은 피고인이 140,000,000원 상당의 메밀냉면을 제조판매하였다고 인정하였고, 더욱이 원심공동피고인에 대한 공소사실 자체에도 그가 1984.8.22.부터 혼합메밀가루를 제조 판매한 것으로 기재되어 있는데, 원심은 피고인이 1983.9.14.부터 혼합메밀가루를 원심공동피고인으로부터 구입 사용하였다고 인정하였으니 이는 사실을 그릇 인정함으로써 판결에 영향을 미친 위법을 범하였다는 취지이고, 피고인 4, 피고인 2의 변호인의 각 두번째 항소이유의 요지는 원심의 형량이 너무 무거워 부당하다는 데 있다.

First, the defendant 1 and 3's grounds of appeal are examined.

Article 2 of the Food Sanitation Act (amended by Act No. 3823 of May 10, 1986; hereinafter the same applies) provides that "food processing business" means all kinds of food except medicine handled. Article 23 (1) of the same Act provides that "any person who intends to operate food processing business under Article 22 of the same Act shall obtain permission from the Minister of Health and Welfare, the Mayor of Seoul Special Metropolitan City, the Mayor of Busan City, or the Do governor as prescribed by the Presidential Decree." Article 9 (30) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 1200 of Nov. 11, 1986) provides that "food processing business" means a business that manufactures food that can be consumed by packaging or mixing agricultural products with another food manufacturing or cooking, etc., and therefore, any person who intends to operate food processing business under Article 23 (1) of the same Act is not subject to permission for mixing with the food processing business under Article 3 of the Food Sanitation Act (hereinafter referred to as "food processing Business Act").

The next defendant 2's first appeal is examined as to the grounds for appeal.

Examining the evidence duly admitted by the court below, it is sufficient to recognize the criminal facts of the defendant as judged by the court below, and according to the investigation report (No. 327 of the investigation record) prepared by the non-indicted Grade III prosecutorial assistant chief of the Seoul District Prosecutor's Office, the co-defendant of the court below was indicted for the violation of the Food Sanitation Act on July 27, 1984 due to the same criminal facts as the time of original trial, the summary order was issued on August 21 of the same year, and the summary order was finalized on September 26 of the same year. As for the above gambling, the prosecutor prosecuted only for the violation of the Food Sanitation Act after August 22, 1984, which is the day following the issuance date of the above summary order. Thus, there is no appeal that the co-defendant of the court below erred by recognizing the criminal facts of the defendant on the day preceding the day of the

The next defendant 4's first ground of appeal is examined as follows.

Examining the evidence duly admitted by the court below, it is sufficient to acknowledge the criminal facts of the defendant, so there is no ground to appeal on this point.

Next, in light of all of the sentencing conditions in the instant case, including the following reasons for appeal by Defendant 4 and Defendant 2’s attorney’s second and ex officio and the fact of sentencing by Defendant 1 and Defendant 3, the judgment of the court below is unfair, and the Defendants’ appeal is justifiable, in this sense, inasmuch as the sentence imposed by the court below is too heavy, in light of the following factors: (a) the Defendants made a mixture of mix air bags or air conditioners by processing a mixture of solar dust in order to raise a quality in the air condition; and (b) the Defendants made a mixture of mix and air conditioning; (c) the ingredients harmful to the human body are not contained; and (d) the

Therefore, the judgment of the court below is reversed in accordance with Article 364(2) and (6) of the Criminal Procedure Act, and the judgment is again ruled as follows after pleading.

Since the facts recognized by a member and the evidence relations related thereto are the same as the time of the original adjudication, they shall be quoted in accordance with Article 368 of the same Act.

Defendants 1 and 3 shall be punished by a fine not exceeding 1,00,00 won for the period of converting 5,00 won into one day under Articles 44(1), 23(1), 22(1), 45 subparag. 1, 23(3), and 22(1) of the Food Sanitation Act, and each act of ruling committed by Defendants 1 and 3 shall be punished by a fine not exceeding the prescribed amount of a fine not exceeding 1,00,00 won within the prescribed amount of a fine, and if the above fine is not paid, the period of converting 5,00 won into one day under Article 70 and 69(2) of the Criminal Act shall be confined to the calendar for the defendants 2 during the period of detention before the sentence of the court below pursuant to Article 57 of the Criminal Act; 80 days for the defendants 35 days for the remaining defendants; 180 days for the crimes by mixing them with a fine not exceeding 1,000, 191 through 131, 1, 141, 17

The prosecutor also prosecutes the Defendants against the charges of this case by applying Articles 43(1), 3(2), and 3(1) of the Food Sanitation Act to the charges of this case. As such, it is evident that the above Article 3(2) was repealed by Act No. 3823 on May 10, 1986, and thus, it is obvious that the Defendants were acquitted pursuant to Article 326 subparag. 4 of the Criminal Procedure Act, or that the Defendants were guilty of a violation of the Food Sanitation Act, the sentence of acquittal shall not be imposed separately.

It is so decided as per Disposition for the above reasons.

Judges Lee Jae-dam (Presiding Judge)