1. Examining the grounds of appeal related to acquittal such as res judicata of a final and conclusive judgment and principle of prohibition of double punishment in light of relevant legal principles and records, the lower court’s rejection of the Defendant’s assertion on this part on the grounds stated in its reasoning is acceptable. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal principles

2. As to the ground of appeal on procedural illegality of administrative disposition

A. In cases where a person who received a corrective order from an administrative agency pursuant to Article 14(5) and Article 17 subparag. 5 of the Small River Maintenance Act violates it, the corrective order should be lawful in order to punish him/her pursuant to Article 27 subparag. 4 of the same Act. Therefore, even if the corrective order is not void automatically, a violation of Article 27 subparag. 4 of the same Act, insofar as it is deemed illegal, cannot be established, and the same applies to cases where the corrective order is illegal due to procedural defects (see, e.g., Supreme Court Decision 2014Do1230, Sept. 21, 2017).

Meanwhile, according to Articles 21(1), 21(4), and 22 of the Administrative Procedures Act, where an administrative agency imposes an obligation on a party or imposes a restriction on his/her rights and interests, it shall notify the parties concerned of the fact that the grounds for such disposition, details of and legal grounds for such disposition, the purport that they may submit their opinions, and the method of disposal when they fail to submit their opinions, etc., and even in cases where other Acts and subordinate statutes stipulate that the hearing shall be held or a public hearing shall be held, the parties concerned, etc. shall be given an opportunity to submit their opinions, but a prior notice of such disposition or hearing may not be given only in cases where the relevant administrative agency does not give such prior notice or give them an opportunity to submit their opinions, unless there are exceptional cases where the administrative agency did not give such prior notice or give them an opportunity to submit their opinions (see, e.g., Supreme Court Decision 2011Du30687, Jan. 16, 2013).

B. The record reveals the following facts: (a) the Defendant, who did not report the installation and occupation of artificial structures for a small river area, as stated in the facts charged in the instant case, issued a corrective order (hereinafter “instant corrective order”) to remove the relevant artificial structure and restore the original state to its original state. However, there is no evidence suggesting that the human head has given prior notice to the Defendant or given an opportunity to submit opinions; and (b) there is no evidence supporting the existence of exceptional circumstances that do not go through such procedures. Examining these facts in light of the legal principles as seen earlier, it is difficult to view that the head of the relevant government office, while issuing the instant corrective order, cannot be deemed as having given a legitimate prior notice or given an opportunity to submit opinions pursuant to Articles 21 and 22 of the Administrative Procedures Act to the Defendant; and (c) it is difficult to view that there is any justifiable ground to justify this. Accordingly, the instant corrective order is unlawful due to the procedural defect, and even if the Defendant failed to implement the corrective order, Article 27 subparag. 4 of the Small River Maintenance Act cannot be established against the Defendant.

Nevertheless, the lower court upheld the first instance judgment that found the Defendant guilty of the facts charged in this case on the grounds stated in its reasoning. In so doing, the lower court erred by misapprehending the legal doctrine on the impartiality and determination of administrative acts, and the establishment of a crime of violation of Article 27 subparag. 4 of the Small River Maintenance Act, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. Ultimately, the ground of appeal assigning

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, 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 Park Sang-ok

Justices Noh Jeong-hee

Justices Kim Jae-hwan in charge