[2] In a case where the Defendants were indicted on charges of violating the Public Waters Management and Reclamation Act by temporarily staying in the sea-rating docks, which are public waters, without permission from the management agency of public waters, by temporarily staying in a grave, the case holding that the Defendants guilty on the ground that the Defendants’ act constitutes “octic use” and “use” as they constitute “use” and “use”, on the ground that they should obtain permission from the management agency of public waters

Therefore, it can be defined that the public waters are used in a fixed and continuous manner for a specific purpose for the meaning of occupancy and use under the Public Waters Act, and it can be defined that the public waters are used temporarily, regulated, and repeatedly for a specific purpose.

[2] In a case where the Defendants were indicted on charges of violating the Public Waters Management and Reclamation Act by temporarily anchoring a flance docks on the sea, which is a public waters, without permission from the management agency of public waters, on the ground that the Defendants’ act of temporarily cutting the flance docks on the surface of the public waters is likely to hinder the safe navigation of other ships and the order of marine traffic, and the Defendants’ act of cutting the flocks on the surface of the public waters is likely to interfere with the safe navigation of ships and the order of marine traffic, and the Defendants’ act of cutting the flocks on the surface of the public waters by getting out of the use under the original usage of the public waters for a specific purpose, the case holding that the Defendants’ act constitutes an “act of occupancy or use” of the public waters, and thus, it should be convicted of the Defendants’ act on the ground that it constitutes “permission of use” from the management agency of public waters.

2. As to Defendant 1, the sentence of punishment shall be suspended;

3. Defendant 2’s appeal is dismissed.

A. misunderstanding of facts and misapprehension of legal principles

The Defendants are merely flicking temporarily on the relevant public waters with a view to driving a ship, and it is difficult to view that they used the relevant public waters in a tangible and solid manner. Therefore, even though the Defendants’ act cannot be deemed as falling under the special use necessary for the occupancy and use permit of public waters, the lower court found the Defendants guilty. In so doing, it erred by misapprehending the legal doctrine or by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment.

B. Unreasonable sentencing

The punishment sentenced by the court below to the defendants (a fine of three million won) is too unreasonable.

2. Judgment on misconception of facts and misapprehension of legal principles

(a) Basic facts

(1) Defendant 2 obtained permission to occupy and use public waters with a size of 384,833 square meters in the area of Chang-gu, Chang-gu, Seoul Special Metropolitan City ( Address omitted) in order to secure work space for mooring vessels and water for dust (the area of the above occupation and use of plug and its appurtenant facilities used in a vessel dust falls under 97,873 square meters, and KRW 350,000,000 is paid as annual occupation and use fees).

(2) Dried painting shall be installed at the public waters inside the workplace and used in shipbuilding and shipbuilding operations. Vessel shipbuilding operations shall normally be conducted by assembling and assembling large blocks built on land on the ground of a roding tank installed on the public waters inside the workplace. Following the completion of shipbuilding, vessel towing operations shall take place, and these operations shall be carried out only at a place where a certain depth of depth is secured, and a roding tank shall be moved to a place where a certain depth of depth is secured.

(3) Stoping ladderss have no self-operation capacity and move to the area of a dust-fighting operation. On arrival in the area of a dust-fighting operation, poper and chain shall be laid to the tank attached to a scoping scam and scambling scam to the scambling tank. Afterwarding a scambling scam to the bottom of the sea, the vessels may progress by having the scam scam to the bottom of the scam scam to enter the sea. The period of time required for entering and departing from the port of this case shall be two to four to four-5 days, and the total period of time required for entering and departing from the port of this case shall be two and three times in 2013 and two times in 2014.

(4) In the instant case, at around 15:00 on January 13, 2013, the Defendants: (a) moved the Jinhae-gu Roloak-gu Round to approximately 500 meters on the sea; and (b) temporarily buried the flaps until January 19, 2013; and (c) carried out the vessel-related operations until January 08:00.

(b) the meaning of occupation and use of public waters;

(1) The purpose of the occupancy and use system under the Public Waters Management and Reclamation Act

The Public Waters Management and Reclamation Act (hereinafter “Public Waters Act”) stipulates that the former Public Waters Management Act and the former Public Waters Reclamation Act were enacted on April 15, 2010 to efficiently perform duties related to public waters. Article 8(1) of the Public Waters Act provides that a person who intends to occupy and use public waters in order to protect and efficiently the marine space and limited natural resources of the public waters shall obtain permission (Article 8(1) of the Public Waters Act). Here, the term “public waters” refers to rivers, beaches, lakes, ditches, and other state-owned waters or waters owned by the State for public purposes (Article 2 subparag. 1 of the Public Waters Act). The management agency of public waters grants permission to occupy and use public waters within the permitted period of occupancy and use under the Public Waters Act after examining whether there is an obstacle to the management and operation of public waters, types of artificial structures, etc. (Article 11 of the Public Waters Act); a person who has obtained permission to occupy and use public waters may not allow another person to occupy and use public waters (Article 8(2) of the Public Waters Act).

(2) Relevant statutory provisions

1) Occupancy and use regulations under the Public Waters Act

Article 8(1) of the Public Waters Act provides that an act of new construction, reconstruction, extension, alteration, or removal of a building, etc. on the public waters is subject to permission for occupation and use; an act of excavating a building, etc. on the public waters below the public waters (as referred to in subparagraph 1); an act of dredging or excavating the bottom of the public waters (as referred to in subparagraph 2); an act of creating a stone stone into land (as referred to in subparagraph 3); an act of drawing water from public waters or discharging water into public waters (as referred to in subparagraph 5) an act of gathering soil, sand, or stone from public waters (as referred to in subparagraph 6); an act of cultivating or cutting plants (as referred to in subparagraph 7) an act affecting the depth of the public waters by dumping soil or stone into public waters (as referred to in subparagraph 8); an act of occupying and using facilities owned by the State, etc. installed with the occupancy and use permission (as referred to in subparagraph 9); an act of gathering minerals (as referred to in subparagraphs 10 through 10; and an act of occupying and using public waters (as referred to subparagraphs 1).

In addition, in the case of the period of permission for occupation and use of public waters, the period of permission for occupation and use of public waters is set within a range of 5 years by determining the period of permission within a range of 30 years for artificial structures such as wharfs, breakwaters, etc. for artificial structures other than the above structures, 15 years for artificial structures, excavation of land adjacent to public waters below the public waters, and extraction of minerals (Article 11 of the Public Waters Act).

(ii) the occupation and use of other relevant laws and regulations;

The River Act stipulates that a person who intends to perform an act prescribed by Presidential Decree as may interfere with the occupation and use of land in a river area, the occupation and use of a river facility, the construction or remodelling of a structure, the excavation, filling-up, or cutting of land, the alteration of the form and quality of land, the extraction of soil, rocks, sand, gravel, and other acts that may interfere with the preservation and management of a river shall obtain permission from the river management agency (Article 33 of the River Act). The Enforcement Decree of the River Act lists the acts of cutting bamboo and trees, regrout, grass, grass, or grass, planting plants, operating a ship, installing a rink, an excursion ship station, a ferry station, a wharf, a wharf, and water play for water-related leisure business (Article 33 of the River Act; Article 35 of the Enforcement Decree of the River Act). The River Act separates occupation and use fees from the river (Article 37 of the River Act).

On the other hand, the Road Act stipulates that a road management authority shall obtain permission to build, rebuild, alter, or remove a structure, object, or other facility or to occupy and use a road for other reasons (Article 61 of the Road Act).

(3) The attitude of judicial precedents

With respect to the meaning of the occupation and use of public waters, rivers, or roads, the Supreme Court has held that the use of a specific part of public waters constitutes a so-called special use for a specific purpose separately from the general use (see, e.g., Supreme Court Decisions 92Nu1325, May 11, 1993; 2002Da68485, Oct. 15, 2004). In particular, the Supreme Court has held that the Defendant cannot be deemed to have occupied and used a sandy site, which is a specific part of public waters, solely on the ground that the Defendant’s lease of 10 scooters to unspecified tourists without the permission of the competent authorities, with the intention of using 10 scooterss to a certain degree of exclusive use of public waters (Supreme Court Decision 2010Do12529, Nov. 25, 201).

(4) Determination

In full view of the Public Waters Act and other relevant Acts and subordinate statutes, the Public Waters Act separates occupancy and use fees and usage fees subject to permission. In the case of the River Act, the Act does not clearly define occupancy and use fees and usage fees, but stipulates that permission and usage fees shall be imposed even in the case of a certain use of a river by distinguishing occupancy and use fees and usage fees. On the other hand, the Road Act stipulates only the occupancy and use of a road subject to permission, and does not stipulate that permission shall be granted in the case of the use of a road. In addition, the Road Act intends to establish, rebuild, alter, or remove structures, things, or other facilities or to use a road in a fixed manner.

In light of the purport of the precedents that the occupancy and use of public waters constitutes a tangible and solid special use, it is reasonable to view that the occupancy and use of public waters under the Public Waters Act means a continuous use requiring a tangible and solid form, and that the use of public waters subject to permission is used for a specific purpose beyond the original usage of public waters, but is used for a specific purpose, but does not reach a tangible, solid form.

Therefore, it can be defined that the public waters are used in a fixed and continuous manner for a specific purpose for the meaning of occupancy and use under the Public Waters Act, and it can be defined that the public waters are used temporarily, regulated, and repeatedly for a specific purpose.

C. Whether the act of anchorage of the instant painting can be seen as occupancy or use under the Public Waters Act

On January 13, 2013, from around 15:00 to January 19, 2013, from around 08:00, the Defendants temporarily buried a jun-gu Jin-si in order to boost LNG vessels at the sea near approximately 500 meters from the Jin-si, Changwon-si. The above area constitutes a public water surface (Article 2 subparagraph 1 (a) of the Public Waters Act) which is an sea where a general upper vessel or a fishing vessel, etc. may navigate: there is no doubt that the aforementioned area falls under the bounds outside the exclusive economic zone under the Exclusive Economic Zone Act from the coastline under Article 6 (1) 4 of the Act on Land Survey, Waterway Survey and Cadastral Records to the outer limit of the exclusive economic zone under the Exclusive Economic Zone Act. Accordingly, it is problematic whether the Defendants temporarily anchored a jun-si to the relevant public waters and carried a vessel on the water.

(1) Whether it constitutes occupancy or use

The following circumstances acknowledged by the evidence duly adopted and examined by the court below and the court below, namely, (i) plug is in the state of bed and anchored after the tugboat was kept in the sea; (ii) it is difficult to view it as using public waters periodically; (iii) it is not merely a temporary use of the public waters but a continuous use of the public waters; and (iv) if plug is deemed as occupying and using the public waters in a fixed and continuous manner, it is limited exclusively by other fishing vessels, vessels, and users during that period (if the defendants obtain permission to occupy and use the public waters three-year unit with respect to the area necessary for using the plug, it is difficult to view that the other vessels or users are completely unable to use the public waters during that period, in light of the legislative intent of the permission to occupy and use the public waters to efficiently use the public waters.

(2) Whether it constitutes use

On the other hand, the following circumstances acknowledged by the court below and the court below's duly adopted and investigated evidence, namely, ① the public waters in question are navigationable places by vessels or general fishing vessels; ② the Defendants' temporary stuffing of the placking of the plug to drive vessels is at risk of impeding the safe navigation of other vessels and maritime traffic order (Article 85 of the Maritime Safety Act has special provisions on restricted navigation of vessels and navigational vessels); ② the Defendants' towing of vessels through the plouting of the plug, are under cooperation with the duty of traffic control of the Jinsan-gu Maritime Authority in order to use the Jinsan-gu Maritime Affairs Authority for a specific purpose; ③ the Defendants appears to have been using the public waters in question for a specific period beyond the original usage under the plout, and ④ the Defendants' act of using the plug to the public waters in question is likely to affect the flow of water into the public waters in question (Article 85 of the Maritime Safety Act).

D. Sub-committee

(1) Therefore, the Defendants need to obtain permission to use public waters from the management agency of public waters to temporarily park spawn on the relevant public waters and train ships. In this case, the area to be permitted to use should be the area of the public waters directly donated for the relevant use and the area of the public waters that may substantially make it impossible to use another person due to the relevant use among the surrounding public waters, and the period of permission to use should be from the moment when the spawning of the spawn is completed to the time when the ship starts sailing after the completion of the navigation.

(2) Meanwhile, the Defendants asserted that, inasmuch as it takes two to three months to obtain permission for use, even in cases where a temporary fluoring dog is interpreted to require permission on the part of the public waters for the purpose of the ship’s progress, it cannot be used in fact if it is interpreted to require permission on the part of the public waters. On the other hand, the Defendants, as the Defendants, may not accept the aforementioned Defendants’ assertion on the following grounds: (a) calculating the period necessary for the use of public waters for the rational prediction and exhaustion of shipbuilding schedule; and (b) applying in advance for permission for use in addition to the period necessary for obtaining the permission.

(3) Ultimately, we affirm the judgment of the court below that pronounced guilty against the Defendants in the same purport, and there is no error of law by misunderstanding facts in the judgment below or by misunderstanding legal principles, which affected the conclusion of the judgment, even upon examining records.

3. Judgment on the assertion of unfair sentencing

The crime of this case was committed by the Defendants, without obtaining permission for use of public waters from the management agency of public waters, using the above public waters by fluoring the ging-rating dog in order to boost LNG ships on approximately 500 meters of the eropib.

A. Defendant 1

Defendant 1 was an initial offender who has no criminal power, and both Defendant 1 and the pertinent management agency did not recognize whether the temporary burial of plug as in the instant case is subject to permission for use of public waters. At present, Defendant 2 imposed the usage fee of KRW 19,860 on Defendant 1. In full view of the various circumstances, including Defendant 1’s age, character and conduct, environment, background, means and consequence of the crime, and the conditions of sentencing as shown in the instant records and arguments, including the circumstances after the crime, etc., the punishment imposed by the lower court is somewhat unreasonable.

B. Defendant 2

Defendant 2 and the pertinent management authority did not recognize whether the temporary anchorage of plug as in the instant case is subject to permission for use of public waters, and the fact that the current usage fee of KRW 19,860 is imposed on Defendant 2 is favorable to Defendant 2.

However, taking into account all the favorable circumstances as above, the lower court appears to have sentenced to a fine of KRW 3 million by reducing the summary order of KRW 5 million sentenced to Defendant 2’s imposition of a fine of KRW 5 million. In addition, comprehensively taking account of the various circumstances, including Defendant 2’s character and conduct, environment, circumstances surrounding the crime, means and consequence, etc., and the circumstances after the crime, it cannot be deemed that the sentence imposed by Defendant 2 is too unreasonable.

4. Conclusion

Therefore, since Defendant 1’s appeal is well-grounded, pursuant to Article 364(6) of the Criminal Procedure Act, the part of the judgment below against Defendant 1 among the judgment below is reversed, and it is decided as follows, and since Defendant 2’s appeal is without merit, it is dismissed in accordance with Article 364(4) of the Criminal Procedure Act.

Article 62 Subparag. 2 and Article 8(1)11 of the Public Waters Management and Reclamation Act, selection of fines

1. The punishment to suspend the sentence;

Fines 3,000,000

1. Detention in a workhouse;

Articles 70 and 69(2) of the former Criminal Act (Amended by Act No. 12575, May 14, 2014)

(50,000 won per day)

1. Suspension of sentence;

Article 59(1) of the Criminal Act. Article 59(1) of the Criminal Act

Judges Cho Chang-young (Presiding Judge)

Notes 1) A water tank which plays a role in keeping the balance between work and left and right by a vessel built for the adjustment of her draft.