According to Article 36(5) of the Creation and Management of Forest Resources Act and Article 43 subparag. 7 of the Enforcement Decree of the Forest Resources Act, where a person who has reported a temporary use of a mountainous district under Article 15-2(2) of the Management of Mountainous Districts Act makes standing timber, etc. accompanying the conversion of a mountainous district, he/she may fell standing timber, etc. without permission from the competent authority under Article 36(1) of the Forest Resources Act.

Meanwhile, according to Article 15-2(2) of the Management of Mountainous Districts Act, Article 18-3(4) [Attachment Table 3-3] subparagraph 6 of the Enforcement Decree of the Mountainous Districts Management Act, a report on temporary use of mountainous districts may be made only when the felling or digging of standing timber in the relevant mountainous district is not accompanied, in cases of cultivating mountain products, etc., but the relevant mountainous district is the average slope level less than 25 square meters and less than 30,000 square meters, and when a forest management plan is authorized pursuant to Article 13 of the Forest Resources Act, a report on temporary use of mountainous districts may be made even when felling or digging of standing timber is accompanied. Moreover, a report on temporary use of mountainous districts prescribed in Article 15-2(2) of the Mountainous Districts

Since the Defendant obtained approval on a forest management plan (revision) and filed a report on temporary use of a mountainous district in order to cultivate sacrhos, even if the smuggling market rejected the above temporary use report, the Defendant’s obligation to report the temporary use of a mountainous district was fulfilled upon the above notification.

Therefore, even without permission from the competent authorities, the Defendant could cut standing trees at will pursuant to Article 36(5) of the Forest Resources Act and Article 43(7) of the Enforcement Decree of the Forest Resources Act.

2. Determination

A. Relevant statutes

Attached Table 1 is as stated in the "relevant statutes".

B. Facts of recognition

Comprehensively taking account of the evidence duly adopted and examined by the court below and this court, the following facts can be acknowledged.

1) On December 12, 2012, the Defendant obtained authorization for the forest management plan under the name of the Nonindicted Party, the “period: from December 2, 2012 to November 30, 2022; Si business type: natural forest care” from the smuggling market on three forest lots, which are owned by the Nonindicted Party, ( Address 1 omitted); and on May 2, 2013, the Defendant obtained authorization for the forest management plan under the name of the head of the Si/Gun/Gu (it does not state any matters concerning felling standing timber, etc. in the approval plan or the approval plan thereof, and on May 2, 2013, the written authorization for the forest plan stating that “I report to the head of the Si/Gun/Gu, if I wish to implement the forest project requiring felling, I will report to implement the forest project necessary).”

2) On September 24, 2013, the Defendant received a report on temporary use of the name of the Nonindicted Party, “the purpose: Purpose: dead cultivation, period: 24 months from the date of the report” with respect to the above ( Address 1 omitted), ( Address 2 omitted), ( Address 3 omitted), three forest and forest lots, and ( Address 4 omitted) forest and forest land (number 4 omitted): In addition, the Defendant received a report on temporary use of the said land under the name of the Nonindicted Party, “the period: 29,978 square meters from the date of the report.” The business plan attached to the said report on temporary use, stating, “the method of operation: the removal of obstacles to standing trees, etc. in the reported land, etc., and the cultivation copier,” and “the standing timber treatment plan: the treatment of pine trees, without removal from the reported land, shall be carried out of the reported land, to promote corruption, and the other plan shall be carried out for the purpose of fire reduction or forestation

3) As to the report on temporary use of the name of the Nonindicted Party on the temporary use of a mountainous district under the name of the Nonindicted Party, the smuggling demanded “to supplement and submit a business plan reflecting the project plan that reflects the cutting of standing timber and the extraction plan, such as the matters authorized for the forest management plan, since the matters for which the report on temporary use of the mountainous district was approved are different.” However, upon the submission of the written reply in the name of the Nonindicted Party stating the purport of the refusal to supplement, the

4) On December 2013, the Defendant cut down 652 standing timber on the ground of the said four lots of forest land ( Address 4 omitted), ( Address 1 omitted), ( Address 2 omitted), and ( Address 3 omitted) forest land.

C. Key issue of the instant case

At the time of the instant case, the Defendant did not obtain permission for cutting standing trees under Article 36(1) of the former Forest Resources Act (amended by Act No. 12415, Mar. 11, 2014; hereinafter the same) and, inasmuch as the smuggling returned the report on temporary use of the name of the non-indicted, the issue of the instant case is whether the report is deemed nonexistent or not, or whether the report was filed solely on the receipt of the report, by making a report requiring acceptance of a temporary use report under Article 15-2(2) of the Management of Mountainous Districts Act and Article 18-3(4) and 6 of the Enforcement Decree of the Mountainous Districts Management Act, insofar as the report is not accepted as above, and the report is not accepted, or by making a notification that satisfies the requirements for the said report.

D. Relevant legal principles

1) In light of the forms and contents of Articles 15-2(2) and 20 of the Mountainous Districts Management Act, Article 18-3(3) of the Enforcement Decree of the Mountainous Districts Management Act and Article 18-3(3) [Attachment Table 3-3] of the Enforcement Decree of the Mountainous Districts Management Act, where a farmer, fisherman, etc. used a mountainous district for a certain period under the condition that he/she restores a mountainous district to a mountainous district to grow ornamental trees, or reports a temporary use of a mountainous district to change the form and quality of such mountainous district for a certain period, the head of a Gun, etc. shall accept such report unless the details of the report are falsely or otherwise wrongfully reported, and the head of a Gun, etc. shall not be deemed to have any discretion in accepting such a temporary use report (see Supreme Court Decision 2011Du31987, Sept. 27, 2012). The foregoing legal doctrine thereafter applies to cases such as the amended Mountainous Districts Management Act, the Enforcement Decree, [Attachment 3] 6-3] Do death.

2) Many of the statutory provisions regarding reports on temporary use of a mountainous district are related to public interest and requires a professional and comprehensive examination by an administrative agency. If a report alone is excluded from the examination of all the requirements, there is concern that serious infringement of public interest, damage to interested parties, and collapse of the overall regulatory system that intends to supervise private activities in advance through the authorization or reporting system prescribed by relevant Acts and subordinate statutes. In addition, a person who intends to make a report on temporary use of a mountainous district may submit required documents that are mandatory to submit to the relevant Acts and subordinate statutes. It is inevitable to deem that the administrative agency accepting the report is to have the administrative agency examine the requirements prescribed by relevant Acts and subordinate statutes. Therefore, it is justifiable to regard the report on temporary use of a mountainous district as the so-called “report requiring acceptance” to be accepted by an administrative agency after examining the substantive requirements (see Supreme Court en banc Decision 2010Du14954, Jan. 20, 201).

E. The judgment of this Court

1) Legal nature of the report on temporary use of the instant case

A) There are many cases where the distinction between a report which does not require acceptance and a report which needs acceptance is unclear, and there is no disagreement on the criteria to distinguish between both parties, but there is no uniform and uniform absolute criteria to distinguish between a report which does not require acceptance and a report which needs acceptance. In order to examine whether a legislative authority intends to regulate a report under individual Acts and subordinate statutes, and to grant any legal effect or to what kind of concept and scope. Therefore, it is inevitable to make a decision by comprehensively grasping the legislative intent, content, and method of the relevant Acts and subordinate statutes. In this regard, it is the most important standard to determine whether to explicitly grant the relevant administrative authority the right to decide whether to accept a report.

On the other hand, in the absence of such express provision, the determination should be made by comprehensively taking into account the following factors: (i) whether there is an explicit provision on acceptance in the law; (ii) whether there is a provision on concurrent preparation for reporting and registration; (iii) whether a registration system has been amended by the reporting system; (iv) whether there is a provision on the effective time of reporting; (v) whether a report on the establishment of a facility has been requested with a provision on the requirements for facilities; (vi) whether a status transferee has a substantive examination provision other than the formal requirements as a requirement for acceptance; (viii) how the administrative penalty provision is a sanction on non-report or a sanction on non-performance of reporting; and

Ultimately, in a comprehensive review of the relevant provisions of the relevant statutes, depending on whether the report alone permits the commencement of the act in question and there is a certain reason to ex post facto control, or whether the report alone does not allow the act in question but allow the final control of the administrative agency, the former should be determined by its self-satisfy report, and the latter should be determined by the report requiring acceptance.

B) As the instant report on temporary use of a mountainous district entails felling of standing timber, the reporter is a farmer, farmer, or fisherman pursuant to Article 18-3(4) and subparagraph 6 of the Enforcement Decree of the Management of Mountainous Districts Act, and the relevant mountainous district is less than 30 square meters average slope degree, the cultivation area is less than 30,000 square meters, and a forest management plan is authorized pursuant to Article 13 of the Forest Resources Act, a report on temporary use of a mountainous district may be filed only when such report is made. The report on temporary use of a mountainous district shall be accompanied by a project plan (including the purpose of conversion, period of business, plan for use of mountainous district to convert mountainous districts, plan for soil and sand treatment, damage prevention plan, etc. to convert mountainous districts, etc. to be used pursuant to Article 18-3(1) and the former part of Article 17(1) of the Enforcement Decree of the Mountainous Districts Management Act, Article 10(2)1 of

C) Comprehensively taking account of the circumstances such as the aforementioned relevant statutes, legal principles, and the report on temporary use of a mountainous district, the instant report constitutes a report requiring acceptance, and the smuggling market has the authority to substantially examine whether the said acceptance requirements are met (see Supreme Court Decision 2011Du31987, supra, the purport of the instant report requiring acceptance is apparent. In addition, Article 16(1) and (2) of the Mountainous Districts Management Act provides that a report on temporary use of a mountainous district under Article 15-2(2) requires an administrative disposition such as authorization under other Acts and subordinate statutes, and the effect of the instant report on temporary use of a mountainous district under Article 15-2(2) does not take place until it is subject to an administrative disposition, and where a disposition of refusal or revocation of such administrative disposition becomes final and conclusive, the instant report on temporary use of a mountainous district under Article 15-2(2) is deemed not to have been accepted, and thus, it is apparent that the instant report is accepted as a single-use report or the instant forest management plan required under Article 18-3(4 and attached Table 6-3).

2) Whether a disposition to return a temporary use report in the smuggling market is void as a matter of course

Even if there were some defects in the disposition of temporary use return of the smuggling market, the effect of the said disposition is not denied on the ground of such defects, except in cases where the defects are deemed null and void due to a significant and apparent defect (see Supreme Court Decisions 94Da28000, Nov. 11, 1994; 2006Da83802, Mar. 16, 2007; 2008Do7957, Mar. 12, 2009; 2008Do7957, Mar. 12, 2009; 2008Do7957, etc.). There is no circumstance to recognize that there is a grave and apparent defect in the above disposition of the smuggling market (it cannot be deemed that the grounds alleged by the defendant and his defense counsel are a grave and obvious defect).

(iii) criminal effects of simple reporting capacity;

Furthermore, even if the report on temporary use of this case actually satisfies all the reporting standards under the Administrative Act, if the return without the acceptance of the report is unlawful, the defendant must dispute its validity in accordance with the lawful litigation procedure and correct it, and it cannot be deemed that the act of cutting off without permission is justified on the ground that such a return disposition is unlawful (see Supreme Court Decision 94Do1188 delivered on October 11, 1994).

F. Sub-committee

Therefore, as long as the report on temporary use of the instant mountainous district by the reporter requiring acceptance is not accepted, it cannot be deemed that the report on temporary use of the instant mountainous district was made. Accordingly, the Defendant is not a person entitled to cut standing timber, etc. without permission pursuant to Article 36(5) of the former Forest Resources Act and Article 43 subparag. 7 of the former Enforcement Decree of the Forest Resources Act (amended by Presidential Decree No. 25599, Sept. 11, 2014). Accordingly, the Defendant cut standing timber without permission for a smuggling market pursuant to Article 36(1) of the former Forest Resources Act, so the Defendant’s assertion of mistake of facts is

3. Conclusion

Therefore, the defendant's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

[Attachment] Relevant Statutes: omitted

Judges Cho Chang-young (Presiding Judge)