2013No2387 Violation of the Public Waters Management and Reclamation Act

1. A;

2. B

Attorney in charge of Law Firm

Changwon District Court Judgment

February 11, 2015

1. The part of the judgment of the court below against Defendant A shall be reversed. 2. The sentence against Defendant A shall be suspended.

3. Defendant B’s appeal is dismissed.

1. Summary of grounds for appeal;

A. misunderstanding of facts and misapprehension of legal principles

피고인들은 선박을 진수시키기 위하여 해당 공유수면에 플로팅도크(floating dock, 浮游船 渠)를 일시적으로 묘박(貓泊)한 것에 불과하고, 해당 공유수면을 유형적·고정적으로 사용하였다고 보기 어렵다. 따라서 피고인들의 행위가 공유수면 점용·사용허가가 필요한 특별사용에 해당한다고 볼 수 없음에도 불구하고, 원심은 피고인들에게 유죄를 인정하였으므로, 원심판결에는 사실을 오인하거나 법리를 오해하여 판결에 영향을 미친 위법이 있다.

B. Unreasonable sentencing

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

(a) Basic facts

(1) For the purpose of securing working space for mooring of a new shipbuilding vessel and water for dust, Defendant B has obtained permission to occupy and use public waters of 60 neighboring 384,833m2 in Chang-gu, Chang-gu, Chang-do (the area of the above occupancy and use permission to occupy and use lusium and its appurtenant facilities used in a ship dust area falls under 97,873m, and KRW 350,000 won is paid as annual occupancy and use fees).

(2) Driing ladders shall be installed at the public waters inside the workplace and used in shipbuilding and shipbuilding operations. Vessel shipbuilding operations shall be conducted by assembling large blocks built on land on the surface of a plug installed on the public waters inside the workplace. Following the completion of shipbuilding, vessel towing operations shall be conducted, while this operations shall be carried out only at a place where a certain depth of depth is secured, so that a plug can be carried out only at a place where a certain depth of depth is secured.

(3) 플로팅도크는 자력항해능력이 없어 예인선 6척에 의하여 출항한 후 진수작업 구역까지 이동하게 된다. 진수작업 구역에 도착하면 앵커 및 체인을 좌·우로 투묘(投貓)하여 플로팅도크를 묘박시킨 후 플로팅도크에 탑재된 탱크에 물을 채우게 된다. 이후 플로팅도크를 해저로 가라앉힌 후 플로팅도크 위에 건조된 선박을 해상으로 진출하도록 하여 선박이 진수된다. 그 후 양묘(揚貓)한 다음 입항하게 되는데, 통상 출항부터 입항까지 소요기간은 2~3일 또는 4~5일이고, 이 사건 플로팅도크는 2013년과 2014년 2년 동안 총 13회 출항하였다. (4) 이 사건의 경우 피고인들은 2013. 1. 13. 15:00경 플로팅도크를 창원시 진해구 웅도 동방 약 500m 해상으로 이동시킨 후 일시 묘박하여 2013. 1. 19. 08:00경까지 선박 진수 작업을 수행하였다.

(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

Article 8(1) of the Public Waters Management and Reclamation Act (hereinafter “Public Waters Act”) provides that a person who intends to occupy and use public waters shall obtain permission to effectively protect and use the marine space called public waters and limited natural resources, by integrating the former Public Waters Management Act and the former Public Waters Reclamation Act (hereinafter “the Public Waters Act”) in order to efficiently perform duties related to public waters (Article 2 subparag. 1 of the Public Waters Act). Here, the term “public waters” means the rivers, beaches, lakes, ditches, and other state 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 scope of the occupancy and use permit under the Public Waters Act after examining whether the management and operation of public waters is hindered, type of artificial structures, etc. (Article 11 of the Public Waters Act); a person who has obtained permission to occupy and use public waters cannot allow another person to occupy and use the permitted 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, or removal of a building, etc. on the public waters is an act of excavating a parcel of land on the public waters below the public waters (subparagraph 1), an act of dredging or excavating the bottom of the public waters (subparagraph 2), an act of creating a land on the surface of the public waters (subparagraph 3), an act of drawing water from the public waters, an act of flowing water into the public waters, or an act of releasing water from the public waters to the public waters, an act of dumping soil or rocks (subparagraph 7), an act of affecting the depth of the public waters such as dumping soil or rocks (subparagraph 8), an act of occupying or using a facility owned by the State, etc. installed with an occupancy or use permit (subparagraph 9), an act of gathering minerals (subparagraph 10), and an act of occupying or using public waters other than those provided for in subparagraphs 1 through 10 (subparagraph 11).

In addition, in the case of the period of permission for occupation and use of public waters, such as wharfs, breakwaters, etc., 30 years or less in the case of artificial structures other than the above structures, 15 years or less in the case of artificial structures other than the above structures, excavation below the public waters, or extraction of minerals, etc., the period of permission is set within the range of 5 years and the maximum period of permission for occupation and use of public waters is differentiated (Article 11 of the

2) Other provisions on occupancy and use of relevant laws and regulations

The River Act provides that a person who intends to engage in any act prescribed by Presidential Decree as may interfere with the occupation and use of land, the occupation and use of a river facility, the construction or alteration of a structure, the excavation, filling-up, and cutting of land, the alteration of the form and quality of land, the extraction of soil, rocks, sand and 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 down bamboo and trees, reging, cutting down, cutting down, cutting down, cutting down, or swimming, etc. of plants, navigation of ships, navigation of ships, installation of a ice rink, an excursion ship station, a ferry wharf, a wharf, a mooring station, and water play for the purpose of water leisure business (Article 33 of the River Act and Article 35 of the Enforcement Decree of the River Act). The River Act separates occupancy charges from the river use fees (Article 37 of the River Act), while the Road Act provides that permission shall be granted to a road management agency.

(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 it constitutes a so-called special use for a specific purpose separately from the general use (see, e.g., Supreme Court Decisions 2002Da68485, Oct. 15, 2004; 92Nu13325, May 11, 1993). In particular, the Supreme Court has held that it cannot be deemed that the Defendant’s occupation and use of 10 scooterss by leasing 10 to unspecified tourists without permission from the competent authorities to operate at the sandy beach of bathing beaches, which is a specific part of public waters (see, e.g., Supreme Court Decision 2010Do12529, Nov. 25, 2010); and, in the case of public waters, it requires that a specific form of public use be freely referred to as a specific form of public use, which is an exclusive use of public waters.

(4) Determination

In full view of the Public Waters Act and relevant Acts and subordinate statutes, the Public Waters Act separates occupancy and use and usage fees subject to permission. In the case of the River Act, it does not clearly distinguish occupancy and use from usage fees. However, the Road Act stipulates only the occupancy and use of a river subject to permission. On the other hand, the Road Act stipulates only the occupancy and use of a road subject to permission. In addition, in the case of the use of a road, it does not stipulate that the occupancy and use of a road constitutes a tangible and fixed special use. In addition, in light of the purport of the precedents, the occupancy and use of a road means a continuous use which requires a tangible and fixed form, and the use of a public water subject to permission means a temporary use of a fixed form which is used for a specific purpose beyond the original usage of a public water, but does not reach a tangible and fixed form.

Therefore, it can be defined that the public waters are used continuously and continuously 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, collectively and repeatedly for a specific purpose.

C. The Defendants, from January 13, 2013 around 15:00 to January 08:00 on January 19, 2013, 201, temporarily buried a fluoring fluor fluor in order to boost LNG vessels on the sea near approximately 500 meters in the same bank. The above general area is the sea where a merchant vessel or fishing vessel, etc. can navigate (Article 2 subparag. 1 of the Public Waters Act).

A. Title: there is no doubt that the act of the defendants temporarily stuffing a plug on the relevant public waters and growing a ship from the coastline referred to in 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) constitutes an occupation or use of public waters.

(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, i.e., g., g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g.. g. g. g.

(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 gambling of the scambling of the scambling of the scams to obstruct 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); ② the Defendants' sailing of the vessels through scambling of the scams by scambling-out vessels, are under cooperation with the duty of traffic control of the scambling vessels in the Jinsan Regional Maritime Authority; ③ the Defendants appears to have been using the public waters for a specific purpose beyond the use under the original usage method; ④ the Defendants' act of using the scambling-out water in order to maintain the balance of the scams as in this case constitutes the act of using the scambling-out water from the public waters under Article 8 (1) of the Public Waters Management Act.

D. Sub-committee

(1) Therefore, the Defendants should 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 offered 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 navigation begins after the completion of the navigation after the completion of the navigation.

(2) On the other hand, the Defendants asserted that, inasmuch as the permission for use was required two to three months, even in cases where a temporary fluoring tank is used on the public waters for the purpose of the ship's progress, if it is interpreted to require the permission, flusium cannot be used. On the other hand, the Defendants, as the Defendants, can reasonably estimate the shipbuilding schedule and calculate the period necessary for the use of the public waters for the purpose of dust, and apply for the permission for use in advance in addition to the period necessary for the permission. Accordingly, they cannot accept the aforementioned Defendants’ assertion.

(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 the use of public waters from the management agency of public waters, using the above public waters by fluoring lusium in order to boost LNG vessels at approximately 500 meters in the Changwon-si, Changwon-si, which is the public waters.

A. Defendant A

Defendant A was an initial offender who has no criminal power, and both Defendant A and the pertinent management authority did not recognize whether the temporary burial of flag as in the instant case is subject to permission for use of public waters. At present, Defendant SEE-ray Marine Co., Ltd.: (a) the usage fee of KRW 19,860 is imposed on Defendant SEE-ray Co., Ltd.; and (b) other circumstances, such as Defendant’s right and personality, character and conduct, circumstances surrounding the crime, means and consequence, the circumstances after the crime, etc., are conditions for sentencing specified in the instant records and pleadings, are inappropriate.

B. Defendant B

Defendant B and the pertinent management agency did not understand whether the temporary anchorage of flag as in the instant case is subject to permission for use of public waters, and at the present, Defendant SEE-ray Marine Co., Ltd. impose KRW 19,860 on Defendant B a fee of KRW 19,860.

However, in full view of the aforementioned favorable circumstances, the lower court appears to have sentenced to a fine of KRW 3 million by reducing a summary order of KRW 5 million sentenced to Defendant B, taking into account all the above favorable circumstances. In addition, comprehensively taking account of the various circumstances, such as Defendant B’s character and conduct, environment, background, means and consequence of the crime, and the circumstances after the crime, etc., the sentence imposed by the lower court to Defendant B is too 4.

Therefore, since the appeal by the defendant A is well-grounded, the part against the defendant A among the judgment below is reversed pursuant to Article 364 (6) of the Criminal Procedure Act, and it is decided as follows, and since the defendant B appeal is without merit, it is dismissed pursuant to Article 364 (4) of the Criminal Procedure Act.

Criminal facts and summary of evidence

The summary of the facts of the crime and evidence recognized by this court is the same as the statement of each corresponding column of the judgment of the court below, except where the "use or use" of the 10th criminal facts is applied as the "use or use" of the 10th criminal facts.

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 62 Subparag. 2 of the Public Waters Management and Reclamation Act, Article 8(1)11 of the Act on the Management and Reclamation of Public Waters, Selection of a fine, etc.;

Fines 3,000,000

1. Detention in a workhouse;

Articles 70 and 69(2)(50,000 won per day) of the former Criminal Act (Amended by Act No. 12575, May 14, 2014)

1. Suspension of sentence;

Article 59(1) of the Criminal Act (Consideration favorable to the reasons for reversal)

Presiding Judge, Judge and Judge

Judges Song Jin-ho

Judges Park Jae-young

(i)a water tank which plays a role in keeping the balance between the tank and the day on which the vessel is sitting, and which is prepared for the adjustment of her draft;

section 3.