[1] Whether the scope of “automobile” under the Automobile Management Act and “automobile” under the Clean Air Conservation Act is identical (negative)

[2] The case holding that an automobile under the Clean Air Conservation Act is an automobile which is a two-wheeled automobile with an engine displacement of less than 50 cc manufactured for leisure sports

[3] The case holding that Article 7 of the Enforcement Rule of the Clean Air Conservation Act / [Attachment 5] and Article 7 of the Enforcement Rule of the same Act / [Attachment 5] that Article 7 of the same Act / [Attachment 5] of the same Act does not exceed the purpose and scope of delegation of the parent law or it cannot be deemed that it is illegal because it goes against the principle of clarity

[4] The case holding that the defendant's importation of ozones less than 50cc does not constitute an error in law under Article 16 of the Criminal Code only with the fact that the defendant received replies by questioning to the Ministry of Environment, not the Ministry of Environment, which is a competent authority regulating the permissible emission levels, etc. of gas, and the Ministry of Construction and Transportation

[1] The reasons cited in Article 2 subparagraph 11 of the Automobile Management Act in Article 2 subparagraph 11 of the Clean Air Conservation Act are that it merely accepts the general definition of an automobile, namely, an instrument manufactured for the purpose of movement on land by an original engine or an instrument manufactured for the purpose of movement on land by being towed, and it does not seem to be the purport of applying the Clean Air Conservation Act only to the automobile subject to the application of the Automobile Management Act. Thus, the scope of the "automobile" subject to the Automobile Management Act and the "automobile subject to the Clean Air Conservation Act" is different.

[2] The case holding that the automobile constitutes a "motor vehicle" under the Clean Air Conservation Act, which is a two-wheeled motor vehicle with an engine displacement of less than 50 cc.

[3] The case holding that Article 7 of the Enforcement Rule of the Clean Air Conservation Act / [Attachment 5] and Article 7 of the Enforcement Rule of the same Act / [Attachment 5] of the same Act / [Attachment 7] are either beyond the purpose and scope of delegation of the parent law or it cannot be deemed that it is illegal because it goes against the principle of clarity

[4] The case holding that the defendant's import of ozones less than 50cc does not constitute a mistake in law under Article 16 of the Criminal Code only with the fact that the defendant received replies by questioning to the Ministry of Environment, not the Ministry of Environment, which is a competent authority regulating the permissible emission levels, etc. of exhaust gases, and the Ministry of Construction and Transportation

[1] Article 1, Article 2 subparagraph 1, Article 3, Article 1 and Article 2 subparagraph 11 of the Automobile Management Act, Article 7 of the Enforcement Rule of the Clean Air Conservation Act / [5] Article 2 subparagraph 11 of the Clean Air Conservation Act, Article 7 of the Enforcement Rule of the Clean Air Conservation Act / [3] Article 2 subparagraph 11 of the Clean Air Conservation Act, Article 7 of the Enforcement Rule of the Clean Air Conservation Act / [Attachment 5] Article 7 of the Enforcement Rule of the Clean Air Conservation Act, Article 12 (1), Article 13, and Article 95 of the Constitution / [4] Article 16 of the Criminal Act

Defendant

Defendant

Ear-gu

Law Firm Han-ro, Attorney Choi Jong-gil

Seoul Central District Court Decision 2006 High Court Decision 100 delivered on April 14, 2006

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 5,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for a period calculated by converting 50,000 won into one day.

In order to order the provisional payment of an amount equivalent to the above fine.

1. Summary of grounds for appeal;

A. Legal principles

(1) The concept of “automobile” to which the Automobile Management Act applies and the concept of “automobile” to which the Clean Air Conservation Act applies are the same concepts. Thus, it is not necessary to obtain certification as to whether the instant automobile constitutes “automobile” under Articles 32(1) and 2 subparag. 11 of the Clean Air Conservation Act, which is a two-wheeled automobile with engine displacement below 50cc that is not subject to the Automobile Management Act.

(2) Article 7 [Attachment 5] [Attachment 5] subparagraph 7 of the Enforcement Rule of the Clean Air Conservation Act includes two-wheeled automobiles with engine engine engine engine engine engine engine engine engine engine engine engine engine engine engine engine engine engine engine engine engine engine engine engine engine engine engine engine engine engine engine engine engine engine engine engine engine engine engine engine engine engine engine engine engine engine engine engine engine engine engine engine engine engine engine engine engine engine engine engine engine engine engine engine engine engine engine engine engine 50 cc. A two-wheeled automobile under Article 2 subparagraph 11 of the Clean Air Conservation Act, which includes two-wheeled automobile under the parent law delegation range. Thus, this deviatess from the delegation scope of the mother law. (2) there is no content about c

(3) The instant off-to-land was produced for le-brine sports, and thus does not constitute a le-to-cube or scubter for driving on a road.

(b) Mistake in law;

가사 이 사건 오토바이가 대기환경보전법상의 ‘자동차’에 해당된다 하더라도 피고인이 이 사건 오토바이가 대기환경보전법에 위반되는지 여부에 대하여 산업자원부, 건설교통부에 질의하여 이 사건 오토바이는 ‘자동차’에 해당되지 않고, 또한 수입에 대한 대기환경보전법상의 수입제한사항은 없다는 회신을 받았으며, 환경부 소속 산하기관인 국립환경연구원에서는 이 사건 오토바이가 도로를 주행할 수 있는 좌우 회전 깜박이 등을 갖춘 이륜자동차가 아니므로 인증대상이 아니라고 한 바 있어 이 사건 범행에 나아가게 되었는바, 이는 피고인이 자신의 행위가 법령에 의하여 죄가 되지 아니한 것으로 오인한 경우에 해당되므로, 형법 제16조 의 법률의 착오에 해당된다.

2. Ex officio determination

Before determining on the grounds for appeal asserted by the Defendant, the prosecutor ex officio examined the case, and the prosecutor applied for amendment of the indictment with the content that the quantity of the imported goods of the instant case from "1,321" to "1,303" among the facts charged in the instant case. Since the instant court permitted this and changed the object of the trial, the judgment of the court below cannot be maintained.

However, as above, the Defendant continues to assert the grounds alleged in the above grounds for appeal even after the amendment to indictment was made, and this is examined in the following 3.

3. Judgment on the grounds for appeal by the defendant

A. Whether the Plaintiff constitutes a “motor vehicle” under the Clean Air Conservation Act

(1) Relevant statutes

○ The definitions of terms used in this Act are as follows:

11. The term "motor vehicles" means the motor vehicles provided for in subparagraph 1 of Article 2 of the Motor Vehicle Management Act and the construction machinery provided for in subparagraph 1 of Article 2 of the Construction Machinery Management Act as prescribed by the Ordinance of the Ministry of Environment;

○ Automobiles under Article 7 (Types of Automobiles) of the Enforcement Rule of the same Act under Article 2 subparagraph 11 of the same Act are as shown in [Attachment Table 5].

Article 5 (Classification of Motor Vehicles into Horse Motor Vehicles, Passenger Motor Vehicles, Trucks, Motor Vehicles, Two-Wheeled Motor Vehicles, and Construction Machinery)

7. Two-wheeled motor vehicles, the engine engine displacement displacement of which is less than 50cc, shall be limited to scood type (including scood type).

Article 32 (Authentication on Manufactured Cars)

(1) Where a motor vehicle manufacturer intends to manufacture (including importation) motor vehicles, he/she shall obtain in advance certification from the Minister of Environment that the emission of exhaust gases of the relevant motor vehicle may maintain to meet the permissible manufactured motor vehicle emission standards for the guarantee period of exhaust gases: Provided, That the Minister of Environment may exempt or omit

A person who falls under any of the following subparagraphs of Article 55 subparagraph 3 (Penal Provisions) of the same Act shall be punished by imprisonment for not more than seven years or by a fine not exceeding 100 million won.

3. A person who manufactures motor vehicles without obtaining authentication in violation of the provisions of Article 32 (1);

○ The definitions of terms used in this Act are as follows:

1. The term “motor vehicle” means an instrument manufactured for the purpose of movement on land by an engine, or an instrument manufactured for the purpose of movement on land by being towed (hereinafter referred to as a “protruding motor vehicle”): Provided, That those as prescribed by the Presidential Decree shall not apply;

○ The term “those prescribed by the Presidential Decree” in the proviso of Article 2 subparagraph 1 of the Enforcement Decree of the same Act means any of the following subparagraphs:

1. Construction machinery under the Construction Machinery Management Act;

2. Agricultural machinery as prescribed by the Agricultural Mechanization Promotion Act;

3. Vehicles under the Act on the Management of Military Supplies;

4. Vehicles operated by rail or by aerial railway.

Article 3 (Types of Motor Vehicles)

(1) Automobiles shall be classified into passenger automobiles, passenger cars, vans, trucks, special automobiles, and two-wheeled automobiles according to the classification standards as prescribed by the Ordinance of the Ministry of Construction and Transportation, such as the size and structure of automobiles, kinds of motor vehicles

○ Article 2(1)5 of the Enforcement Rule of the same Act (Classification of Motor Vehicles)

(1) The types of motor vehicles under Article 3 (1) of the Automobile Management Act (hereinafter referred to as the "Act") shall be classified as follows:

5. Two-wheeled motor vehicles: A motor vehicle with two wheels which is properly manufactured to transport one person or two persons (including a motor vehicle with two wheelss and a motor vehicle with three or more wheels derived from a two-wheeled motor vehicle): Provided, That those the engine displacement of which is less than 50cc (in cases of a structure generating power by electricity, it means the one the rated output of which is less than 0.59kw) shall be excluded.

(2) Determination:

First, the concept of "automobile" subject to the Clean Air Conservation Act and the concept of "automobile" subject to the Automobile Management Act are the same, and ① Clean Air Conservation Act aims to ensure that all citizens can live in a healthy and pleasant environment by preventing air pollution and by managing and preserving the atmospheric environment in an appropriate and sustainable manner (Article 1). The Automobile Management Act aims to efficiently manage automobiles by prescribing matters concerning the registration, safety standards, self-certification, manufacturing defects, correction, inspection, inspection, inspection, and automobile management business, etc., and to promote public welfare by securing performance and safety of automobiles (Article 1). ② The Automobile Management Act separates the types of automobiles into passenger automobiles, passenger automobiles, passenger automobiles, freight automobiles, two-wheeled automobiles, and two-wheeled automobiles (Article 3), and the Clean Air Conservation Act classifys the types of automobiles into two different types of automobiles, which are manufactured by the Clean Air Conservation Act (Article 7 of the Enforcement Rule of the Automobile Management Act only), and it does not fall under the definition of Article 1 of the Automobile Management Act as being applied to automobiles under Article 2 of the Clean Air Conservation Act.

Next, we examine whether the automobile of this case falls under the category of the "automobile" subject to the Clean Air Conservation Act, and ① Article 2 subparagraph 11 of the same Act delegates specific particulars of the automobile subject to the Clean Air Conservation Act to the Ministry of Environment from among the "automobile manufactured for the purpose of movement on land by an original engine or equipment manufactured for the purpose of movement on land by being towed." ② Accordingly, Article 7 of the Enforcement Rule of the same Act [Attachment 5] classify the automobile into light automobiles, passenger automobiles, trucks, two-wheeled automobiles, and construction machinery, and the two-wheeled automobiles are less than 0.5t of public vehicle capacity, and the two-wheeled automobiles are not limited to the engine displacement quantity, and the two-wheeled automobiles are subject to the permissible emission levels of two-wheeled automobiles under the Clean Air Conservation Act, and the two-wheeled automobiles are subject to the permissible emission levels of two-wheeled automobiles under the same Table.

Therefore, the defendant's argument on this part is without merit.

B. Whether Article 7 of the Enforcement Rule of the Clean Air Conservation Act / [Attachment 5] is illegal

(1) Whether the delegation scope of the parent law was exceeded

Article 7 [Attachment Table 5] subparagraph 7 of the Enforcement Rule of the Clean Air Conservation Act provides that two-wheeled automobiles under 50 cc which are not included in the "motor vehicle" under Article 2 subparagraph 11 of the Clean Air Conservation Act shall be included in the "motor vehicle", and therefore, it shall be argued that it is illegal regulation deviating from the purport of delegation of the Act. Thus, the issue of whether the order of the law was exceeded the scope of delegation of the parent law, such as the Ordinance enacted by the head of each administrative department, etc. pursuant to Article 95 of the Constitution shall be determined after the scope or limitation of delegation of the parent law is objectively determined in comparison with the contents of the order of the parent law, considering not only the form and content of the directly delegated law provisions, but also the overall system, purpose, purpose, and purpose of the mother law, and it shall not be deemed null and void if the contents of the order of the law are deemed to be within the scope of delegation of the mother law as above or if it is clear that the parent law is planned and clear (see, e.g., Supreme Court en banc Decision 97Nu25260.

First, Article 2 subparag. 11 of the Clean Air Conservation Act, which is a direct delegated legal provision that is the basis of the above Enforcement Rule, delegates the detailed provision of an automobile subject to the Clean Air Conservation Act, among instruments manufactured for the purpose of movement on land by an engine or instruments manufactured for the purpose of movement on land by being towed (hereinafter “motor vehicle management Act”) and machinery used for construction work (Article 2 subparag. 1 of the Construction Machinery Management Act). As seen earlier, Article 2 subparag. 11 of the Clean Air Conservation Act only cites the general definition of an automobile under Article 2 subparag. 1 of the Automobile Management Act and excludes a two-wheeled automobile under 50cc, according to the delegation of the mother law, it cannot be readily concluded that a two-wheeled automobile under 50cc is included in “motor vehicle” to which the Clean Air Conservation Act applies, and that it goes beyond the purport of direct delegation.

On the other hand, the above Enforcement Rule has the function of embodying the meaning of Article 32(1) of the Act, which provides that when a motor vehicle manufacturer intends to manufacture (including import) motor vehicles, the emission of exhaust gas of the relevant motor vehicle can be maintained in compliance with the permissible emission standards of manufactured motor vehicles during the guarantee period of exhaust gas. Therefore, the issue of violation of the mother law of the above Enforcement Rule can only be examined by examining what is the law, in order to establish the certification system.

Therefore, the purpose of the certification system is to enable all citizens to live in a healthy and pleasant environment by preventing danger and injury to public health and the environment due to air pollution and by managing and preserving the atmospheric environment in a proper and sustainable manner. In light of the fact that the purpose of the certification system is to establish the permissible emission levels of air pollutants to achieve this, and to regulate exhaust gases such as automobiles, ships, etc., it is reasonable to deem that the purpose of the certification system is to effectively prevent and manage air pollution by allowing the vehicle manufacturer who intends to obtain certification to comply with the regulations under the laws and regulations for the prevention of air pollution that ensure that air pollutants emitted from automobiles are always emitted below the permissible emission levels of manufactured automobiles. Thus, it is reasonable to consider that the above Enforcement Rule provides two-wheeled automobiles whose engine displacement quantity is less than 50 cc which are less than the permissible emission levels of manufactured automobiles as types of automobiles in accordance with the above basic legislative purpose of the mother law, the purport of the certification system of manufactured automobiles is contained in the certification system of manufactured automobiles, and thus, it cannot

(2) Whether it goes against the principle of clarity

If there is a reasonable interpretation standard to standardized or limit the types of acts that meet the elements of the crime as an understanding and judgment of ordinary people who have the ability to discern things by examining the legislative purpose, overall contents, structure, etc. of penal law, it does not violate the principle of clarity of penal law required by the principle of no punishment without law (see Supreme Court en banc Decision 98Do3665 delivered on November 16, 200, etc.).

The above Enforcement Rule provides that "a type of motor vehicle, which is one of the constituent elements of Article 55 subparagraph 3 of the Clean Air Conservation Act, which is a penal provision, and the supplementary interpretation of the judge is almost not necessary." The above provision itself is a proper understanding and judgment of the general public with the ability to distinguish objects, and its meaning can clearly be clearly grasped. Thus, it is reasonable to deem that what constitutes "a type of scood type (including a scoo type)" is sufficiently guaranteed, and that there is little possibility of arbitrary enforcement by the law executor, and therefore, it is not a provision contrary to the principle of clarity required by the principle of no punishment without law (Article 5 subparagraph 3 of the above Act is limited to a person who is a criminal offender under the penal provision of Article 55 subparagraph 3 of the above Act, and thus, it is sufficiently guaranteed predictability of the concept of scood type (including a scood type).

Therefore, the defendant's assertion that the above enforcement rules exceeded the scope of delegation of the parent law and are unlawful against the principle of clarity is without merit.

C. Whether the Obane in this case is a scood type (including scood type)

The Defendant asserted that it was produced for leisure purposes of the Oral Ba, and thus, it is not a Madna or Scoo under the premise of road driving. However, according to the evidence duly examined and adopted by the court below, the Defendant introduced the Oral Ba to the police officer to introduce and regulate the instant Oral Ba to commute to and from work, the fact that the instant Oral Ba was actually being used for the instant Oral Ba, and the structure of the Oral Ba in which the instant Oral Ba was actually used for the instant traffic, can be recognized as “the instant Oral Ba was manufactured suitable for the transport of one or two persons,” and according to the above recognized facts, the instant Oral Ba constitutes a Mad type among two-wheeled vehicles under the above Enforcement Rule. Accordingly, the Defendant’s argument

(d) Whether it constitutes an error in law; and

The legal mistake means that it is not a simple site, but an act which constitutes a crime under the Clean Air Conservation Act, but a mistake that is permitted by the law in its own special case, and it does not be punishable if there is a justifiable reason. According to the records, the defendant can be recognized on June 20, 2005 that the head of the National Institute of Environmental Research certified the automobile exhaust gas from the representative vehicle as to the model of the Austria on the same model on July 8, 2005, the defendant received a certificate of omission of certification of individual imported or two-wheeled automobile exhaust gas from the representative vehicle from the National Institute of Environmental Research on the same model on July 8, 2005 (Investigation Records 84), so it can be sufficiently recognized that the defendant knew that it is subject to certification under the Clean Air Conservation Act (the defendant's assertion is not accepted since there is no evidence to support it, which is an affiliated organization of the Ministry of Environment, and it does not constitute a crime of two-wheeled automobile from the Minister of Construction and Transportation (the Minister of Construction and Transportation).

4. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Articles 364(2) and 364(6) of the Criminal Procedure Act on the grounds of ex officio reversal as seen above, and it is again decided as follows after pleading.

The summary of the facts constituting the crime and the evidence against the defendant recognized by the court of this case is identical to the description of each corresponding column of the judgment below, except where the court below corrected the "1,321" as "1,303" as "1,304." and the "1,321" as "1,303." Thus, it is cited as it is in accordance with Article 369 of the Criminal Procedure Act.

1. Relevant Article of the Act and the choice of punishment for the crime;

Article 5 subparagraph 3 of Article 5 and Article 32 (1) of the Clean Air Conservation Act (Selection of Fine)

1. Invitation of a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Judges Lee Kang-won (Presiding Judge)