(영문) 부산지방법원 2009.1.9.선고 2008노2877 판결

A defendant shall be punished by a fine of 2,00,000 won. If the defendant does not pay the above fine, the defendant shall be confined in the workhouse for the period calculated by converting 60,000 won into one day: Provided, That the fractional amount shall be one day.

The provisional payment of the amount equivalent to the above fine shall be ordered.

Reasons

1. Summary of grounds for appeal;

A. misunderstanding of facts and misapprehension of legal principles

Although the Defendant did not collect earth and rocks, etc. from public waters in the cadastral map where the land category is the Gu, and the above Gu did not actually lead to the flow of water and thus, it did not have occupied or used public waters without permission, and in fact he stored a stone embankment in the Defendant’s land owned by the Defendant, but it was possible to carry out construction works by piling stone or restoring lost land, etc. from the head of Busan Northern District Office, and thus, it cannot be said that the Defendant violated the Public Waters Management Act. However, the lower court convicted the Defendant, which erred by misapprehending the facts, thereby affecting the conclusion of the judgment.

B. Unreasonable sentencing

The sentence of the court below against the defendant (the fine of KRW 3,00,000) is too unreasonable.

2. Determination:

A. Judgment on the assertion of mistake of fact

(1) Prior to the determination of the defendant's assertion of mistake, the prosecutor indicted that C, the representative B, and employees of the defendant, used approximately 240 meters in length, 3,703, 40 m3,000 and 703,000 m3,000 m3,000 m3,000 m3,000 m3,000 m2,000 m2,000 m2,000 m2,000,000,000,000 m2,000 m2,000,000 m2,000 m2,00,000 m2,000 m2,000 m2,00,000 m2,00,000 m2,00 m2,07,00 m2,00

(2) First, we examine the part of the Defendant’s representative B, C, B2x public waters located in the public waters located in the field where soil and rocks, sand, etc. were collected without permission due to excavation equipment, etc.

The term "public waters" means the state-owned waters, such as the seashore, rivers, lakes, marshes, ditches, and other waters or waterways used for public purposes (Article 2 subparagraph 1 of the former Public Waters Management Act (amended by Act No. 8819 of Dec. 27, 2007; hereinafter "former Public Waters Management Act"), and such public waters are so-called natural public waters, which are provided for direct use by themselves, so even if part of public waters were actually reclaimed and siteized, they still have the nature as public waters under law unless the State disuse them as public waters (see Supreme Court Decision 95Nu10327, Dec. 5, 1995).

In light of the above legal principles, even if the above public waters were not actually used as public waters even if the public waters were not used for the purpose of public use because they did not flow into the public waters in the mountain of the public waters offered for land category, it still has the nature as public waters under the law. Thus, even though permission for occupation or use is obtained in order to take the soil, rocks, or gravel in the mountain, it shall be deemed that the above act by the representative and employees of the defendant without permission constitutes a violation of the Public Waters Management Act. Therefore, the defendant's assertion of mistake on this part is without merit.

(3) Next, we examine the part that the Defendant’s representative and employees occupied and used public waters by means of piling up stone festivals at yy sy sy sy sy sy shots, etc. from the Defendant’s representative and employees.

The former Public Waters Management Act refers to any land submerged under the water surface by erosion of land registered in the cadastral record (Article 2 subparag. 3 of the former Public Waters Management Act). Article 2 subparag. 3 of the former Public Waters Management Act provides that where the owners registered in the cadastral record coincide with each other, where land creation is physically possible, or where land creation is deemed necessary in light of the cost necessary for the creation of adjacent land, or where land creation is deemed necessary, land creation shall be permitted by the management agency (Article 5(1)4 of the former Public Waters Management Act; Article 4 of the former Enforcement Decree of the Public Waters Management Act).

According to the evidence duly adopted and examined by the court below and the court of first instance, yyy is naturally deprived of water and all of the official cadastral records and registers are listed as the owner, so it constitutes a fall under Article 5 (1) 4 of the former Public Waters Management Act. However, according to the above evidence, although the representative and employees of the defendant yyy performed the above act without obtaining the permission of occupation and use from the management agency, it seems that the above yyy was stored on both sides of the land where water flows actually and it was stored on the boundary of the land where the river actually flows, and it is difficult to see that the construction of new land was made by piling the stone. According to the above examination, the former Public Waters Management Act requires that the permission of use should be obtained only from the creation of land, and since the representative and employees of the defendant did not obtain the permission of occupation and use, it cannot be said that it violated Article 21 (1) 1 of the former Public Waters Management Act or it did not err by misapprehending the legal principles as to the above act.

3. Conclusion

Therefore, since the appeal by the defendant is well-grounded, the judgment of the court below shall be reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and the following judgment is

Criminal facts and summary of evidence

The summary of the facts of the crime and evidence acknowledged by the court of this court among the facts of the crime in the judgment of the court below, "the person occupies and uses public waters of approximately 240 meters in length, approximately 3,073 meters in size, and approximately 3,073 meters in size" in Article 36 of the Criminal Procedure Act means that "the person occupies and uses public waters of approximately 240 meters in size, 3,073 meters in size by using an excavated machine in the Gu and the Han River (which seems to be a clerical error of 3,073 square meters in size), which is the public waters located in the area of the Sinsan-dong, Seosan-dong, Busan Metropolitan City, Nowon-gu, Seoul Metropolitan City, and the public waters located in the area of 1,000 square meters in length, using the excavated machine without permission, and changes the area of the public waters to the size of 3,073 square meters in size, other than that of the public waters, as stated in the relevant Article 369 of the Criminal Procedure Act.

Application of Statutes

1. Article applicable to criminal facts;

Article 21 subparag. 1 of the former Public Waters Management Act (amended by Act No. 8819 of Dec. 27, 2007), Article 21 subparag. 1 of the former Public Waters Management Act (amended by Act No. 8819 of Dec. 27, 2007), Article 22 subparag. 1 and Article 12(2) of the former Public Waters Management Act (amended by Act No. 8819 of Dec. 27, 2007), Article 23 of the former Public Waters Management Act (amended by Act No. 8819 of Dec. 27, 2007)

2. Aggravation for concurrent crimes;

Articles 37 (former part), 38 (1) 2, and 50 of the Criminal Act

3. Order of provisional payment; and

Article 334(1) of the Criminal Procedure Act

From January 26, 2007 to April 30, 2007, Defendant XX Development Co., Ltd. without obtaining permission from the head of the Si/Gun/Gu with respect to the Defendant’s representative B, B2’s duties, and Defendant C did not obtain permission from the head of the Si/Gun/Gu with respect to the facts charged in the instant case. Defendant D occupied and used public waters from April 17, 2007 to April 30, 207 by means of storing tins from the Busan Northern-dong 1, Dongsanxx xx Japan x through the main body of the Criminal Procedure Act, and even if the Defendant did not obtain permission from the office of administration, it does not constitute a violation of the above provision of the Criminal Procedure Act. The Defendant’s act of stockpiling tins from the yyyy, the surrounding x located at the Busan x, and it does not constitute the Defendant’s act of using the above public waters under the latter part of the Criminal Procedure Act or the Defendant’s act without permission.

The reason for sentencing is that the defendant was ordered to take safety measures against the Yy's stone axis owned by the defendant, and the defendant was caused to the crime of this case while implementing the above safety measures, that the defendant was not punished for the same crime, and that there was no other record of punishment for the same crime, and the sentencing conditions under Article 51 of the Criminal Act as stated in the argument of this case shall be determined by taking into account the factors