Whether the concept of "land form and quality alteration" and "land form and quality alteration" under Article 90 (2) and Article 21 (2) of the Urban Planning Act are immediate crimes (affirmative)

To fall under the change of the form and quality of land under Articles 90 subparagraph 2 and 21 (2) of the Urban Planning Act, the act of changing the form and quality of land is required due to cutting, banking, or suspension, etc., and the act of changing the form and quality of land is the so-called immediate crime completed simultaneously with the formation thereof.

Article 21(2) and Article 90(2) of the Urban Planning Act

Supreme Court Decision 91Do2234 delivered on November 26, 1991 (Gong1992, 367), Supreme Court Decision 93Do403 delivered on August 27, 1993 (Gong1993Ha, 2685), Supreme Court Decision 96Do1237 delivered on July 12, 1996 (Gong196Ha, 2575), Supreme Court Decision 96Do1536 delivered on September 24, 1996 (Gong196Ha, 3263)

Defendant

Defendant

Seoul District Court Decision 97No5282 delivered on December 24, 1997

The judgment of the court below is reversed, and the case is remanded to the Seoul District Court Panel Division.

1. According to the reasoning of the judgment below, the court below found that the defendant leased a restaurant building owned by him to the non-indicted in Seocho-gu Seoul, Seocho-gu, 192- 81 square meters and allowed him to operate the restaurant, and without obtaining permission. Since June 1996, from around 582, the non-indicted in a development-restricted zone, he had the non-indicted use it as a restaurant parking lot and changed the form and quality of the land by using it for its purpose. Since August 1 of the same year, the non-indicted used it as a restaurant parking lot, and the non-indicted used it for the purpose of which the non-indicted used it for 100 square meters among 174-3 square meters and 189 square meters in a development-restricted zone, which were owned by him, and in a condition that people can have access, and the non-indicted changed the form and quality of the land for that purpose, each of the above defendant's acts constituted an outdoor restaurant business site and maintained Article 90 (2) and (2) of the Urban Planning Act.

2. However, in order to constitute a change in the form and quality of land under Articles 90 subparag. 2 and 21(2) of the Urban Planning Act, the act of changing the form and quality of land should be conducted by cutting, raising, or suspending the ground, etc. (see, e.g., Supreme Court Decision 96Do1237, Jul. 12, 1996). The crime of changing the form and quality of land in this case is a so-called immediate crime completed at the same time as the crime is established (see, e.g., Supreme Court Decision 96Do1536, Sept. 24, 1996). In this case, even according to the facts charged itself, there is no content that the defendant, etc. changed the form and quality of land. The defendant's act stated in the first instance judgment maintained by the court below as criminal facts was used as a parking lot or an outdoor place, and thus, the defendant's act does not change the form and quality of land to the form and quality of land.

3. Therefore, the court below affirmed the judgment of the court of first instance which found Defendant guilty, which erred by misapprehending the legal principles as to changing the form and quality of land, or by failing to exhaust all necessary deliberations, thereby affecting the conclusion of the judgment. Therefore, the grounds of appeal pointed out

4. Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition.

Justices Lee Don-hee (Presiding Justice)