농지법위반등
The judgment of the court below is reversed.
Defendant shall be punished by imprisonment for six months and by a fine for 300,000 won.
The above fine shall be imposed on the defendant.
1. Although the statutory penalty for a violation of the Building Act is stipulated in the summary of the grounds for appeal (public prosecutor), the lower court rendered unfair sentencing, such as selecting imprisonment for a violation of the Building Act and not concurrently imposing a fine.
2. The lower court’s determination is that the sentence of the former Building Act (amended by Act No. 14016, Feb. 3, 2016) on the violation of the Building Act among each of the crimes set forth in the holding of the lower judgment is prior to the enforcement date of the amended Act on statutory penalty under Article 111 of the amended Building Act, and thus, it is deemed that the former Building Act was applied before the amendment.
In the application of Article 111(1) and Article 20(3), imprisonment was selected.
In this regard, the statutory penalty for the above crime is stipulated only by a fine not exceeding five million won, so it is not possible to choose imprisonment.
Nevertheless, the court below selected the imprisonment with prison labor for the above crime, aggravated punishment of each crime of concurrent crimes, and sentenced the defendant to eight months of imprisonment. Thus, the court below erred by misapprehending the legal principles on the statutory punishment for a crime of violating the Building Act, which affected the conclusion of the judgment. Since the court below sentenced the remaining crimes of violation of the Building Act and each crime of violation of the former part of Article 37 of the Criminal Act as a single punishment, the judgment of the court below shall be reversed in its entirety.
Therefore, prosecutor's assertion is justified.
3. In conclusion, the prosecutor's appeal is with merit, and the judgment of the court below is reversed pursuant to Article 364 (6) of the Criminal Procedure Act, and it is again decided after pleading as follows.
[Re-written judgment] The summary of the facts constituting an offense and the evidence is identical to each corresponding column of the judgment below, and thus, it shall be quoted in accordance with Article 369 of the Criminal Procedure Act.
Application of Statutes
1. Article 57(2) and (3), Article 34(1) of the Farmland Act (amended by Act No. 14361, Dec. 2, 2016) regarding criminal facts; Article 6 of the Addenda to the Mountainous Districts Management Act (amended by Act No. 14361, Dec. 2, 2016); Article 53 of the former Mountainous Districts Management Act (amended by Act No. 14361, Dec. 2, 2016).