분묘발굴
The prosecutor's appeal is dismissed.
1. The summary of the grounds for appeal is that the Defendant discovered a grave (hereinafter referred to as “the grave of this case”) recorded in the facts charged of this case without notifying the public official in charge, even though he was fully aware of the fact that the Defendant had discovered a grave under his control, and thus, the Defendant cannot be deemed as a mistake in the law with legitimate grounds.
2. Judgment on the grounds for appeal
A. Relevant legal principles 1) Article 16 of the Criminal Act provides that a person’s act of misunderstanding that his act does not constitute a crime under law shall not be punishable only when there is a legitimate ground for misunderstanding.
In general, it is reasonable to recognize that the act constitutes a crime but does not constitute a crime that is permitted by the law in one’s own case. The purport of such misunderstanding is not to punish if there is a justifiable reason. Whether there is a justifiable reason should be determined depending on whether the act is not aware of the illegality of his own act as a result of failing to fulfill his intellectual ability even though he could have been aware of the illegality of his own act if he had performed a serious effort to avoid it. The degree of effort necessary for recognizing the illegality should be determined differently according to the circumstances of the act, the offender’s awareness ability, and the social group to which the actor belongs (see Supreme Court Decision 2008Do3598, May 28, 2009, etc.). However, even if the act subject to punishment was not permitted by the administrative agency despite the permission, even if the act was not permitted by the public official, it is not required to grant the permission.