주거 강릉시 ㅇ0면 ㅇㅇㅇ리 000-0(0/0)

본적 강릉시 0면ㅇㅇㅇ리000

If the Defendant intends to occupy and use land in a river area, he/she shall obtain the permission of the management agency, despite the fact that:

2004. 7. 21.경부터 같은 해 10. 15.경까지 강릉시 ㅇㅇ면 ㅇㅇㅇ리 000 및 같은 리 0-0 하천구역 부지를 무단점용하여 강원7거0000호 및 93더0000호 포터 화물차량을 주 차하고 차량 적재함에 모래시계 등 기념품을 진열하고, 이를 판매하였다.

Summary of Evidence

1. The defendant's partial statement in the first trial record;

1. Statement made by witnesses in the 8th trial records;

1. Protocol of inspection by this Court;

1. 정 ㅇㅇ의 임의진술서

1. Each accusation, three copies of the current status and photographs of illegal facilities, river maintenance plans, cadastral map, and public notification of rivers to which the aforesaid provisions shall apply mutatis mutandis;

1. The river maintenance master plan attached thereto for the fact-finding reply letter made on October 12, 2005 at the preparation of the Gangnam market;

A copy of the public notice, a copy of the river register, a copy of the Gangwon-do Governor's report on fact-finding on April 12, 2007 (in this case, the report).

The river inundation attached thereto and the Gangwon-do Governor's reply to the fact inquiry made on June 7, 2007 (in addition thereto).

(2) Data explaining the master plan for the maintenance of the river)

Judgment on the Issues

1. Defendant and his defense counsel’s assertion

피고인 및 변호인은 , 피고인이 무단점용하였다는 강릉시 ㅇㅇ면 ㅇㅇㅇ리 000 및 같 은 리 0-0 부지(이하 '이 사건 부지'라 한다)는 1999년경 강릉시가 매립, 조성하여 주 차장으로 제공한 부지로서 하천법 상의 하천구역이 아니라고 주장한다. 이하에서는 이 사건 부지가 과연 하천법 상의 하천구역에 해당하는지에 관하여 살펴보도록 한다 .

2. Provisions of relevant Acts and subordinate statutes;

A. former River Act (1) (Law No. 5893, February 8, 1999; August 9, 199)

Article 17 (Basic Plan for River Maintenance)

(1) The river management agency shall maintain rivers for its management on such terms and conditions as the Presidential Decree may determine.

The main plan (hereinafter referred to as the "basic plan for river maintenance") shall be formulated.

(2) A basic plan for river maintenance may take into account the occurrence of flood damage, the current status of the development and use of water resources, the river environment, etc.

shall be established by map.

(3) Where a management agency intends to formulate or modify a basic plan for river improvement, it shall in advance be the head of related administrative

It shall undergo deliberation by the River Management Committee after consultation: Provided, That minor changes as determined by the Presidential Decree shall be made.

This provision shall not apply when intended.

(4) Where a management agency establishes or modifies a basic plan for river maintenance, it shall do so.

The notice shall be made publicly.

(5) The provisions of Article 13 shall apply to local first-class rivers and local second-class rivers extending over two or more Cities/Dos by Mayors/Do Governors.

A basic plan for river maintenance shall apply mutatis mutandis to the formulation of such basic plan.

(b) The former River Act (Law No. 6841, Oct. 1, 2003, December 30, 2002);

Article 2 (Definitions, etc. of Terms)

(1) The definitions of terms used in this Act shall be as follows: < Amended by Act No. 6371, Jan. 16, 2001>

1. The term "river" means a system of flowing water (hereinafter referred to as "river system") closely related to public interests;

The term "river area of the water system" includes river appurtenances.

2. The term “river area” means:

(a) Land and topography on which water flows continuously, and the state of plant growing in the land concerned;

Land in which other situations are protruding in a trace of water flow at least once a year (large flood and other natural phenomena).

the land in which the situation is temporarily located shall be excluded pursuant to paragraph (1) of this section.

(b) Land area which is a site of river appurtenances;

(c) Embankments (limited to those installed by a river management agency or a person permitted or entrusted by the management agency);

(2) if any, the exclusionary land (referring to the land on the side of the depth from the bank);

(d) Of the land areas similar to those as determined by the Presidential Decree, it shall be integrated into the areas falling under item (a); and

Land required to be managed, which is the river management agency under the provisions of Article 12 (hereinafter referred to as the “management agency”).

(c)a zone of land designated by it;

C. The former River Act (3) (Law No. 7101, Jul. 21, 2004, January 2004, 2004)

Article 2 (Definitions, etc. of Terms)

(1) The definitions of terms used in this Act shall be as follows: < Amended by Act No. 6369, Jan. 16, 2001; Act No. 7100, Jan. 2

1. The term "river" means a system of flowing water (hereinafter referred to as "river system") closely related to public interests;

The term "river area of the water system" includes river appurtenances.

2. The term “river area” means:

(a) Land and topography on which water flows continuously, and the state of plant growing in the land concerned;

Land in which other situations are protruding in a trace of water flow at least once a year (large flood and other natural phenomena).

the land in which the situation is temporarily located shall be excluded pursuant to paragraph (1) of this section.

(b) Land area which is a site of river appurtenances;

(c) Embankments (limited to those installed by a river management agency or a person permitted or entrusted by the management agency);

(2) if any, the exclusionary land (referring to the land on the side of the depth from the bank);

(d) It is required to manage together with the zones falling under item (a) from among the zones of land falling under any of the following items:

Any land in the area of which a river management agency (hereinafter referred to as the “management agency”) is designated under the provisions of Article 12.

Area of land

(a)the land necessary for the flood discharge in a place without a bank, if a flood is likely to occur;

Area of land determined by Ordinance of the Ministry of Land, Infrastructure and Transport

(ii)an area of land similar to that determined by the Presidential Decree;

(d) former Enforcement Decree of the River Act (Presidential Decree No. 18475, July 20, 2004; Presidential Decree No. 18475, July 21, 2004);

Article 2 (Area of River Designated by Management Agency)

(1) "Land zone prescribed by Presidential Decree" in Article 2 (1) 2 (d) (i) of the River Act (hereinafter referred to as the "Act").

means a flood control plan by means of flood defense facilities, such as a bank, dam, reservoir, flood control area, etc.;

The term "water discharge" means a flood discharge which serves as the basis for establishing a plan for installing river appurtenances as a small flood discharge; hereinafter the same shall apply.

The term “land zone” means a zone between the two banks necessary for a flow.

3. Facts of recognition;

Comprehensively taking account of the above-mentioned evidence, the following facts are recognized:

가. 강릉시 ㅇㅇ면 ㅇㅇㅇ리 소재 정동진천은 관리청인 강원도지사가 1963. 5. 28. 준용하천(현재 지방2급하천으로 명칭이 변경됨)으로 지정하는 고시를 한 이래, 1982. 9. 29. 강원도고시 제82-146호로 재차 준용하천으로 지정하는 고시를 하였고, 이후 1999. 2. 8. 구 하천법 <1> 의 전면개정이 있자 2000. 3. 25. 강원도고시 제2000-47호로 하천정비기본계획이 수립되어 하천구역이 고시된 지방2급하천이다.

B. The public notice of the above river maintenance master plan is based on the river ledger (the river area was prepared by a service company specializing in repair in 199, and it was subject to deliberation by the Gangwon-do Local River Management Committee). The attached river ledger is registered.

C. According to the service report drawn up at the time of the preparation of the above river maintenance plan, a survey point created a temporary parking lot (including the site of this case) by reclaiming the river area of Gangseo-gu City.The planned flood discharge at one point is 335m/S, the planned flood discharge is 2.95 E.m. (50m.) to 3.16 E.m. (80 years frequency) and the downwater is 112m.

D. The point of the above temporary parking lot No. 1.42E.m. The height of the point is 1.42 E.m., and the land from 2.95 E.m. to 3.16 E.m.m. of the planned flood level is 1.53m to 1.74m.

E. The instant site was buried in Gangseo-si in around 1999 and was constructed as a parking lot. In recent years, the traces of water flow could not peep, and around 1m difference from the river, there was no facility that appears as a room.

4. Determination

Article 2 (1) 2 (a) through (c) of the former River Act provides that a certain border area among the land within a river section shall be a river area, and if the land meets the requirements prescribed by the Act even if there is no decision and public notice by the management agency due to the absence of the decision and public notice by the management agency, it shall be a statutory system of a river area (a shortly referred to as a "legal river area"). Provided, That Article 2 (1) 2 (d) of the former River Act provides that a management agency may designate a specific land as a river area (a shortly referred to as a "designated river area") and in the case of a local second-class river, if the Mayor/Do Governor has already designated the form of a river area at the time of designating its name and section, it shall be established as a river area without any separate disposition at the time of the designation.

However, there is no evidence to regard the site of this case as falling under the statutory river area, namely, Article 2 (1) 2 (a) through (c) of the former River Act. Therefore, in order for the site of this case to fall under the river area, it should be designated as the designated river area under Article 2 (1) 2 (d) of the former River Act. The site of this case can be designated as a river area only for similar land excluded from the former River Act. The site of this case does not have any facilities seen as a bank. Thus, the site of this case cannot be deemed as a designated river area under Article 2 (2) of the former River Act, because the land of this case is less than 1.53m or 1.74m below the planned flood, which is one of the designated river areas under Article 2 (1) 2 (d) of the former River Act, as the land necessary for the anticipated flood flow when there is no bank.

In addition, even if the instant site was designated as a river area prior to the enforcement of the former River Act prior to the implementation of the river improvement plan, the amended River Act (the preceding designation of the river area prior to the enforcement of the three-dimensional river) does not become null and void. The purpose of the amendment of the former River Act (3) remains as private land because a large number of areas without a lower river bank were designated as a river area, such as a river area where water flows into flood, and there is a decrease in water flow and increase in flood damage. Thus, even if the river area was not located within a river area without a river control area, it can be seen that there was no need to separately designate a river area as a river area after the completion of the amendment of the former River Act as a specialized river improvement plan, and as such, it is reasonable to view that the designation of a river area as a specialized river area after the completion of the amendment of the existing River Act, even if there was no need to separately designate a river area as a river area after the completion of the amendment of the existing Act as a specialized river improvement plan.

Therefore, after July 21, 2004, the site of this case meets all the legal requirements and designation of a river area as a local river area. Since it is determined that the site of this case falls under the designated river area under Article 2 (1) 2 (d) (1) of the former River Act (3) because it is determined that the site of this case falls under the designated river area under Article 2 (1) 2 (d) (1) of the former River Act (the prosecutor, upon filing a summary prosecution, stated the time of the crime as the date of January 1, 2003, which was the first possession, but the prosecutor accepted the point of the full bench in the process of the trial and revised the indictment as of July 21, 2004, which was the time when the former River Act was enforced). The defendant and the defense counsel are not accepted.

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Subparagraph 4 of Article 85 and Article 33 (1) 2 of the River Act (Selection of Fine)

1. Determination of punishment;

Fines 300,000

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act (50,000 won per day)

1. Suspension of sentence;

Article 59 (1) of the Criminal Code (the first offender, and the site of this case from Gangnam-si to the Gangseo-si) is filled and created as a parking lot.

the river area by the amendment of the relevant Act or subordinate statute; or

In light of the fact that it is unclear whether to commit the crime, and the fact that it reflects the crime, the opening of the crime

The normal situation is remarkable)