The summary of the facts charged of this case is as follows: around 15:00 on June 14, 1991, Defendant 1 discharged exhaust gas containing 64% of the exhaust gas emissions exceeding 40%, which is the permissible emission level for vehicles using light oil in front of the Jung-gu Woo-dong Hospital located in Daejeon, Daejeon, and Defendant 1 operated a small-sized truck (vehicle number omitted). Defendant 2 operated the above small-sized truck exceeding the permissible emission level for Defendant 2’s business. In full view of Defendant 1 and Defendant 2’s agent’s each statement in this court and the protocol of statement as to Defendant 1 and the protocol of statement as to Nonindicted Party 1, it is acknowledged that Defendant 2’s employees exceeded the permissible emission level for the above small-scale trucking vehicle operated by Defendant 1, as shown in the above facts charged.

2. Defendants’ legal actions

Defendants asserted that the above truck is within the free guarantee period and that the above truck is not subject to the Defendant 1 or Defendant 2, who is the operator, and therefore, is not subject to the punishment under Article 57 subparag. 6 and Article 36 of the Clean Air Conservation Act.

3. Determination

(1) Article 36 of the Clean Air Conservation Act provides that a person who operates an automobile shall operate the automobile in compliance with the permissible emission standards of running cars as prescribed by the Presidential Decree. Article 57 subparagraph 6 of the same Act provides that a person who operates an automobile in excess of the permissible emission standards of running cars under the provisions of Article 36 of the same Act shall be punished by imprisonment for not more than 6 months or by a fine not exceeding 2 million won.

(2) However, Article 37 (1) of the same Act provides, however, that the Minister of Environment may inspect automobiles in a road or parking lot, etc. in order to ascertain whether an operator's exhaust gas meets the permissible emission levels for automobiles under Article 36. Article 38 (1) of the same Act provides that the Minister of Environment may order the operator or owner of automobiles to improve the exhaust gas under the conditions as prescribed by the Ordinance of the Prime Minister, if the exhaust gas exceeds the permissible emission levels as a result of an inspection under Article 37 of the same Act. Accordingly, Article 72 of the Enforcement Rule of the same Act provides, in a case where an automobile exceeding the permissible emission levels as a result of an inspection under Article 37 (1) of the Clean Air Conservation Act is manufactured within a free guarantee period for the follow-up management under Article 32 of the same Act and the causes for excess of the permissible emission levels for automobiles are not identified within 15 days from the inspection date, and the manufacturer or owner of automobiles are not required to produce a confirmation of the causes for excess of the permissible emission levels under paragraph (2) of the same Article 3) of the Automobile Act.

Ultimately, in full view of the purport of the provisions of the Clean Air Conservation Act, the Enforcement Decree thereof, and the Enforcement Rule thereof, the manufacturer of a motor vehicle shall manufacture the motor vehicle in compliance with the permissible emission standards of manufactured motor vehicles, and the operator of a motor vehicle shall prevent air pollution caused by motor vehicle exhaust gases by operating the motor vehicle in compliance with the permissible emission standards of motor vehicles. If it is found that the motor vehicle in operation exceeded the permissible emission standards as a result of inspection of exhaust gases, the motor vehicle is within a free guarantee period under the Motor Vehicle Management Act, and the motor vehicle is not so. In the case of the former, the motor vehicle operator is not obliged to arbitrarily operate or damage devices and parts related to exhaust gases in accordance with the use and maintenance guide set by the motor vehicle manufacturer. Therefore, if the cause of excess is not a person operating a motor vehicle or the owner of the motor vehicle, the reason of exceeding the permissible emission standards is attributable to the manufacturer of the motor vehicle, and thus, the motor vehicle operator or owner of the motor vehicle is liable for improvement.

(3) As such, in light of the purpose of distinguishing the cases where an automobile manufacturer’s automobile exhaust gas in a free guarantee period exceeds the permissible emission levels of running cars and the case where the operator or owner of the automobile is liable for the improvement of the automobile in excess of the permissible emission levels, Article 57 subparag. 6 of the Clean Air Conservation Act, which provides that the automobile exhaust gas in operation shall be punished in excess of the permissible emission levels of running cars, is limited to the cases where the operator or owner of the automobile is in excess of the permissible emission levels of running cars, rather than to punish the operator or owner of the automobile in excess of the permissible emission levels of running cars. Accordingly, as seen in the above paragraph (2), if the automobile in question is within the free guarantee period under the Automobile Management Act, and the automobile operator or owner of the automobile does not arbitrarily operate or damage the devices and parts related to exhaust gas used by the manufacturer in accordance with the use and maintenance guide as set forth in the said paragraph, even if the automobile exhaust gas exceeds the permissible standards, it cannot be punished under the said provision.

(4) Comprehensively taking account of the aforementioned evidence and the copy of the registration certificate of the Mayor of Daejeon Special Metropolitan City, Daejeon Special Metropolitan City, and the head of Daejeon Special Metropolitan City Daejeon Special Self-Governing Office, the maintenance of Nonindicted 2’s office. Inspection confirmation, Defendant 2 purchased from the Aeronautical Motor Vehicle Co., Ltd. on December 3, 1990, and for which one year has not passed since the purchase date of the vehicle under the control that it exceeded the permissible exhaust gas standards, and 4,851 kilometers within the distance of 20,000 kilometers, the odometer was within the free guarantee period as stipulated under the Automobile Management Act. Thus, even if Defendant 2 controlled the excess of the permissible exhaust gas standards as above, Defendant 2 did not arbitrarily provide the 6th permissible level of exhaust gas emissions to the said e.g., the e., the manufacturer or the e., the e., the e., the e., the e., parts for which the e., truck driver’s use of the e., within the warranty period for free guarantee.

4. Conclusion

Thus, the facts charged in this case constitute a case where there is no proof of facts constituting the crime, and thus, the defendant is acquitted under the latter part of Article 325 of the Criminal Procedure Act

It is so decided as per Disposition for the above reasons.

Judges Kim Yong-deok