[2] The case holding that the act of the defendant who purchased pine trees, etc. planted on the ground from the forest owners who were incorporated into the National Highway Expansion Works and decided and announced as a road zone by the management agency does not constitute the act of extracting pine trees in the above forest area without permission under Article 90 (1) of the Forestry Act

[2] The case holding that the act of the defendant who purchased pine trees, etc. planted on the ground from the owners of woodlands, etc. that were incorporated into national highways expansion works and decided and announced as road zones by the management agency, does not constitute a case where he extracted forest products without permission as stipulated in Article 90 (1) of the former Forestry Act (amended by Article 2 of the Addenda to the Creation and Management of Forest Resources Act (Act No. 7678 of Aug. 4, 2005)

1. Summary of the facts charged

The summary of the facts charged in the instant case is that the Defendant extracted 35 copies of pine trees planted in forests and fields (detailed lot number omitted) from Gyeongjin-gun, Chungcheongnam-do without obtaining permission from the competent authority between August 10, 2004 and August 12, 2004.

2. The judgment of the court below

The court below affirmed the judgment of the court of first instance that found the Defendant guilty of the charges of this case, on the ground that the Defendant’s act of extracting pine trees in each of the instant forests without obtaining the permission of the Busan Regional Land Management Office or the Ulsan Regional Land Management Office violates Article 90(1) of the Forestry Act, on August 4, 2003, since it is deemed that the Defendant obtained the permission of conversion of mountainous district under Article 14 of the Management of Mountainous Districts Act, or permission of cutting standing trees, etc. under Article 90(1) of the Forestry Act pursuant to Article 25-2(1) of the Road Act, although each of the instant forests is not deemed to have obtained the permission of conversion of mountainous district, and as long as the road zone was determined and publicly notified for each of the instant forests, but the completion of road construction inspection is not completed, each of the instant forests is still deemed to have been subject to the Forestry Act.

3. Judgment on the grounds of appeal

A. Article 90(1) of the former Forestry Act (amended by the Addenda to the Creation and Management of Forest Resources Act (amended by Act No. 7678 of Aug. 4, 2005; hereinafter “Forest Act”) provides that a person who intends to extract or gather standing timber, forest products (excluding stone and earth and sand under subparagraphs 3 and 4 of Article 2 of the Management of Mountainous Districts Act) in a forest shall obtain permission from the head of a Si/Gun or the head of a regional forest management office under the conditions as prescribed by the Ordinance of the Ministry of Agriculture and Forestry, and Article 118(1)4 of the Forestry Act provides that a person who extracts forest products without permission in violation of Article 90(1) of the Forestry Act shall be punished. Meanwhile, according to the provisions of Article 25-2(1)4 of the Road Act, it shall not be deemed that a road management agency has consulted on the permission of cutting standing timber in a road zone under the provisions of Article 90(1) of the Forestry Act, but shall also be deemed that a public announcement of the said permission has been made within the said road zone.

B. According to the records, each forest of this case was incorporated into the 7th g g g g g g g g g g g g g g g g g g g g, and the Busan g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g.).

C. Nevertheless, on the premise that the Defendant, other than the road management agency, is not deemed to have obtained permission for cutting standing trees, etc. or permission for mountainous district conversion under the Road Act, the lower court determined that the Defendant did not obtain a separate permission for mountainous district conversion under the Mountainous Districts Management Act, and that the Defendant’s act of extracting this case still violates Article 90(1) of the Forestry Act for the reason that the land category is forest land until completion inspection is completed, even if each forest of this case was determined and publicly announced as a road zone. Thus, the lower court erred in the misapprehension of legal principles as to the legal fiction of permission under Article 25-2 of the Road Act, which affected the conclusion of the judgment, and thus, the allegation in the grounds of appeal

4. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Hyun-chul (Presiding Justice)