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(영문) 대법원 2018. 4. 12. 선고 2018도1490 판결

[업무상횡령·건축법위반·국토의계획및이용에관한법률위반][미간행]

Main Issues

In a case where the defendant et al. conspired to extend a building which is a religious facility without the permission of the competent authority, and installed infrastructure without the decision of an urban management plan by such method, and the charges of violation of the National Land Planning and Utilization Act are found guilty, the case holding that the above two crimes are limited to one act in light of social norms, namely, extension of a single building, and are related to commercial concurrent crimes, and that the court below erred by misapprehending the legal principles or by misapprehending the evaluation of the number of crimes does not affect the conclusion of the judgment.

[Reference Provisions]

Articles 30 and 40 of the Criminal Act; Articles 11(1) and 110 subparag. 1 of the former Building Act (Amended by Act No. 12701, May 28, 2014); Articles 43(1) and 141 subparag. 1 of the National Land Planning and Utilization Act

Escopics

Defendant

upper and high-ranking persons

Prosecutor

Defense Counsel

Attorney Kim Jong-seok et al.

Judgment of the lower court

Cheongju District Court Decision 2017No1246 decided January 12, 2018

Text

The appeal is dismissed.

Reasons

1. The grounds of appeal are examined.

For the reasons indicated in its holding, the lower court, on the grounds that the evidence presented by the prosecutor alone, determined that it is insufficient to recognize that Nonindicted 1 conspiredd with Nonindicted 2, Nonindicted 3, and Nonindicted 4 on the act indicated in this part of the facts charged, or that the Defendant conspiredd with Nonindicted 1, other than the above Nonindicted 2, etc., and thus, did not accept the Prosecutor’s allegation of mistake

In light of the relevant legal principles and records, the lower court did not err by misapprehending the bounds of the principle of free evaluation of evidence against logical and empirical rules, contrary to what is alleged in the grounds of appeal.

2. Ex officio, the charge of violation of the Building Act due to unauthorized construction among the charges in this case and violation of the National Land Planning and Utilization Act due to the construction of infrastructure for which no urban or Gun management plan is determined is the subject of one act in light of the social concept of an extension of a single building. The case where one act constitutes several crimes, and where one act constitutes several crimes, the court below erred in maintaining the application of the statutes in the judgment of the court of first instance which held that the above two crimes are concurrent crimes. Therefore, the court below erred in maintaining the application of the statutes in the judgment of the court of first instance, which held that the above two crimes are substantive concurrent crimes. However, in this case where the above two crimes are concurrent crimes, and where the punishment is imposed by aggravated punishment for concurrent crimes as provided for in the crime of occupational embezzlement, it is difficult to view that the judgment of the court below affected the conclusion of the judgment (see, e.g., Supreme Court Decision 2002Do735, Feb. 28, 2003).

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jung-hwa (Presiding Justice)