Defendant 1 and three others

Both parties

Kim Jong-chul (prosecution) and Yellow-young (Public trial)

Law Firm Future Law Firm, Attorney Kim Maritime Shelf

1. Changwon District Court Decision 2015Da2960, 2016 Godan422 (Consolidated) decided July 15, 2016, Supreme Court Decision 2015Da715, 1295 (Consolidated) Decided July 15, 2016, Supreme Court Decision 2016Ma861 Decided July 15, 2016

Of the judgment of the court below, the parts of the judgment against Defendant 1, Defendant 3 (Defendant 3), and Defendant 2 are reversed.

Defendant 1 shall be punished by a fine of three million won, and Defendant 2 shall be punished by a fine of two million won.

When Defendant 1 fails to pay the above fine, the above defendant shall be confined in a workhouse for the period calculated by converting KRW 100,000 into one day.

Defendant 1 and Defendant 2 are not guilty of the use of the instant explosives without permission, and Defendant 3 are not guilty.

The summary of the judgment of innocence is publicly announced.

Defendant 4 (Counter-board: Defendant 4)’s appeal is dismissed.

1. Summary of grounds for appeal;

A. Defendants

1) misunderstanding of facts and misapprehension of legal principles

A) Of the judgment of the court of first instance, the part concerning the change in the manufacturing method of explosives without permission (Defendant 1 and Defendant 2 corporation)

An act of adding NC to the promotional agents of tear gas does not constitute a case where the risk of human life or body increases compared to the previously permitted product, and does not constitute a separate product with all new ingredients different from the previously permitted product. Since the risk of human life and body is increased or the part directly related to safety management is not changed, it does not constitute an act of adding NC to the promotional agents of tear gas, and thus, it does not constitute a product subject to manufacturing permission under Article 4(1) of the former Control of Firearms, Swords, Explosives, etc. Act (amended by Act No. 12960, Jan. 6, 2015; hereinafter “former Act”).

B) As to the part of the judgment of the court below on the violation of the place of storage of explosives (Defendant 1 and Defendant 2 corporation)

The main text of Article 24(1) of the former Act provides that the storage of powders shall be carried out at an explosives storage place, and the proviso of the same Article provides that powders less than the quantity prescribed by Presidential Decree may be stored in a place other than an explosives storage place. Moreover, Article 27 [Attachment 6] of the former Enforcement Decree of the Act (amended by Presidential Decree No. 26858, Jan. 6, 2015; hereinafter “former Enforcement Decree”) provides that “other fire-processed articles” containing tear gas may be stored in a place other than an explosives storage place up to 25 km. However, the total quantity of black powders contained in 2,00 loaded in the factory Ma can be stored in the place other than an explosives storage place, and thus, it cannot be punished pursuant to the former Act.

C) Of the judgment below of the court below Nos. 1, 3, and 4, the portion of using unauthorized powders and the judgment of the court below No. 2 (Defendant 1, Defendant 2, Defendant 3)

According to the proviso of Article 18(1) of the former Act, a person prescribed by Presidential Decree may blast and burn explosives without permission from the chief of the competent police station, and Article 15 subparag. 4 of the former Enforcement Decree of the same Act provides that “a person who may possess explosives on duty pursuant to the Acts and subordinate statutes” shall be entitled to use explosives without permission for use. The Defendants may possess explosives on duty as a manufacturer and his/her employee as prescribed by Article 10 subparag. 2 and subparag. 9 of the former Act. Thus, even if explosives are used without permission for use by the chief of the competent police station, they shall not be punished pursuant to the former Act.

D) Of the judgment of the court below of the third instance, pertaining to the alteration of manufacturing equipment without permission and the part on business practice (Defendant 1, Defendant 4)

Article 4(1) of the former Act does not stipulate specific standards for permission to change the kinds or manufacturing methods of powders, but does not stipulate the standards for permission to change the facilities and equipment which the workplace for manufacturing powders is required to be equipped. The Defendant Company only stipulates the manufacturing process of tear gas in its business plan submitted at the time permission is granted for the manufacture business of explosives, and does not specify the specific facilities and equipment in accordance with the process. Thus, the Defendant Company’s act of removing passive tear gas manufacturing machine and installing a powder compressions automatically manufacturing the tear gas in accordance with Article 4(1) of the former Act does not require permission to change the business plan submitted at the time of permission to manufacture explosives.

In addition, Article 4 (1) of the former Act, which provides that a powder type or manufacturing method shall not be applied to the case where a person changes the kinds of powders or manufacturing method, even though the powder type or manufacturing method is merely a machine that merely provides a road map for a person’s snow and joints, or a machine that reflects the cS mixture.

E) Of the lower judgment’s judgment, the part related to the alteration of the structure of an unauthorized factory (Defendant 1 and Defendant 2)

The purport of Article 4(1) of the Act on the Safety Management of Firearms, Swords, Explosives, Etc. that requires permission when changing the structure, etc. of a factory is to inspect whether the alteration of a factory that requires the maintenance of security and the security of safety is appropriate. However, as the Defendants were to restore the factory laboratory destroyed by fire to their previous state, the instant construction work did not cause a new danger to the factory or cause an increase in risk, and thus, the instant construction work does not constitute the alteration of the factory structure as referred to in Article 4(1) of the said Act.

2) Unreasonable sentencing

Each sentence of the lower court (Defendant 1: KRW 3 million, KRW 3 million, KRW 3 million, KRW 1 million, KRW 1 million, KRW 2 million, KRW 5 million, KRW 500,000, KRW 3 million, and KRW 2 million, KRW 3 million, KRW 500,000, KRW 3000, KRW 500, KRW 500,000, KRW 4, KRW 500, KRW 500,000, KRW 500, KRW 500, KRW 4, and KRW 4 of the lower judgment) is too unreasonable.

(b) Prosecutors;

Each punishment of the lower court against Defendant 1 and Defendant 2 is too unhued and unfair.

2. Ex officio determination

The reason for appeal shall be considered ex officio prior to the judgment.

The court held that each appeal case against Defendant 1, Defendant 2 and Defendant 3 against the judgment below was consolidated and tried. Each of the offenses in the judgment of the court below against the above Defendants is a concurrent offense relationship under the former part of Article 37 of the Criminal Act, and should be punished as a single sentence within the scope of the term of punishment, which increased concurrent offenses pursuant to Article 38(1) of the Criminal Act. In this respect, the part against the above Defendants among the judgment of the court below is no longer maintained.

Although there are such reasons for ex officio reversal, the above Defendants’ assertion of misunderstanding of facts and misapprehension of legal principles, Defendant 4’s mistake of facts and misapprehension of legal principles, and the assertion of unreasonable sentencing are still subject to the judgment of this court, and we examine

3. Determination on the grounds for appeal

A. Of the judgment of the court below of first instance, the part concerning the assertion that the manufacturing method of explosives without permission is modified (Defendant 1 and Defendant 2 corporation)

The Defendants asserted the same purport as the reasons for appeal at the lower court. Based on its stated reasoning, the lower court rejected the Defendants’ assertion on the following grounds: (a) Defendant 2 Co., Ltd., on the grounds as indicated in its reasoning, added cotton drugs, island bombs, etc. different from the composition and structural specifications of tear gas at the time of first obtaining permission, and arbitrarily changed ingredients and structure, such as removing SS mixtures; and (b) the tear gas produced by changing ingredients or structure has increased its ingredients or structure compared to the tear gas produced as previously permitted, and thus, (c) the bombs produced by changing its ingredients or structure have increased its ingredients or structure

Examining the above judgment of the court below in light of the evidence duly adopted and examined by each court below, the above judgment of the court below is just and acceptable (the questioning reply of the ○○○○○○○○○○ Association was presented to the purport that the change in the composition and structure of the tear gas does not constitute a change if it is technically seen, but it is merely an opinion made in technical part, and it is reasonable to deem that permission should be obtained as long as the performance of the tear gas has been changed substantially due to the relevant change) and there is no error of law by misunderstanding the legal principles, which affected the conclusion of the judgment. The defendants' assertion in this part is without merit.

B. Of the judgment of the court below of first instance, determination on the part of violation of the place of storage of explosives (Defendant 1 and Defendant 2 corporation)

The Defendants asserted the same purport as the reasons for appeal at the lower court, and the lower court rejected the Defendants’ assertion on the grounds that the black powder contained in the tear gas from military disposal can be stored in a place other than the powders storage place up to 2 km because they constitute powders, not fire-processed goods.

Examining the above judgment of the court below in light of the evidence duly adopted and examined by each court below, the above judgment of the court below is just and acceptable (Article 27 [Attachment Table 6] of the former Enforcement Decree of the Act is divided into powders and other fire extinguishing drugs in relation to the kinds of powders, and therefore, it is reasonable to see that black powder contained in the above tear gas is not other fire extinguishing products, but as "fire extinguishing medicine" and it is not erroneous in the misapprehension of legal principles, which affected the conclusion of the judgment. The defendants' assertion on this part is without merit.

C. Of the judgment of the court below on the first, third, and fourth, the part concerning the unauthorized use of explosives and the second judgment on the assertion related to the judgment of the court below (Defendant 1, Defendant 2, and Defendant 3)

Article 15 subparag. 4 of the former Enforcement Decree of the Act provides that "a person who may possess powders on duty pursuant to the Acts and subordinate statutes" shall be a person who can use powders without permission for use; ② the Defendants constitute a manufacturer and his employee as prescribed by Articles 10 subparag. 2 and 10 subparag. 9 of the former Act and a person who may possess powders on duty; ③ Article 15 subparag. 4 of the former Enforcement Decree of the Act limits "a person who may possess powders on duty pursuant to the Acts and subordinate statutes" to cases under Article 10 subparag. 1 of the former Act and there are no grounds for interpretation by limiting the scope of cases under Article 10 subparag. 1 of the former Act. In light of the above, it is reasonable to deem that the above manufacturer and his employee may not be punished pursuant to the former Act even if blasting and burning the powders without permission of the chief of the police station having jurisdiction. Accordingly, the Defendants

D. Of the judgment of the court below of the third instance, the determination on the alteration of manufacturing facilities without permission and the part on the commercialization (Defendant 1 and Defendant 4)

The Defendants asserted the same purport as the grounds for appeal at the court below, and the court below rejected the Defendants’ assertion on the following grounds: ① Article 8 subparag. 17, subparag. 19, and subparag. 25 of the former Enforcement Decree of the Act shall not cover steel goods in a dangerous factory laboratory but cover powder dust in the container; ② Article 8 subparag. 17, subparag. 19, and subparag. 25 of the same Act provide detailed matters concerning the internal structure of a factory laboratory where powder dust is likely to occur; ② Article 8 subparag. 17 of the former Enforcement Decree of the Act provides for dust dust in a dry type, unlike portable type, and there are many dust dusts in a window dressing type, and thus, the Defendant Company had no choice but to change its contents in the business plan and the business plan according to the manufacturing method by a dry type at the time of obtaining permission for the first powders manufacturing business.

In full view of the following circumstances acknowledged by the evidence duly adopted and examined by the court below and the court below, i.e., “CS mixtures”, and it is reasonable to view that the manufacture of “explosives” includes all processes, including CS mixturess, even if they do not fall under powder, and the actual occurrence of risk of fire, etc. due to changes in the manufacturing process as above, the judgment of the court below is just and acceptable, and there is no error of law by misapprehending the legal principles, which affected the conclusion of the judgment. The Defendants’ assertion related to this part is without merit.

E. Of the judgment below of the court below on the ground that the portion concerning the alteration of factory structure without permission was alleged (Defendant 1 and Defendant 2 corporation)

For the reasons indicated in its holding, the lower court determined that Defendant 1 and Defendant 2 committed the crime identical to the facts charged in the instant case by comprehensively taking account of the following: (a) the Defendant 1 and Defendant 2 did not simply restore a week (manufacturing factory) destroyed by fire through the instant construction to the same level as before, but at least intended to change the building factory laboratory to the least least the stom assembly factory laboratory; and (b) there is a need for the competent authority to examine whether new risks arise in relation to the manufacturing, etc. of powders conducted in a week, and to determine whether to grant permission for the modification thereof.

In light of the following circumstances acknowledged by the court below and the evidence duly adopted and examined, the court below's judgment is just and acceptable, and there is no error in the misapprehension of legal principles, which affected the conclusion of the judgment by misapprehending the legal principles of the judgment below, and there is no ground to view that the defendant applied for permission to change the existing building, so long as the defendant applied for permission to change the existing building, there is no ground to regard it as separate from the construction of the entire building that applied for permission to change the basic construction of the floor and the crypt construction itself, and that the defendant does not increase risks because there is no direct relation to the specific use of the building.

4. Determination on Defendant 4’s assertion of unreasonable sentencing

In light of the following facts: Defendant 4 was merely a supervisory officer in the case of Defendant 4, and the punishment is less than that of Defendant 1, which is the direct actor, and there is no change in circumstances that could change the punishment of the lower court, and other circumstances that are the conditions of sentencing as shown in the instant pleadings, such as the age, character and conduct, motive and circumstances of the crime, and circumstances after the crime, the sentence of the lower court is deemed appropriate. This part of the Defendant 4’s assertion is without merit.

5. Conclusion

Therefore, the appeal by Defendant 1, Defendant 2, and Defendant 3 on the portion of using explosives without permission among the judgment of the court below is well-grounded, and since the part of the judgment of the court below against Defendant 1 among the judgment of the court below and the part against Defendant 2 among the judgment of the court below regarding Defendant 1, Defendant 3, and Defendant 2 on the part against the judgment of the court below, the judgment of the court below is reversed in accordance with Article 364(2) and (6) of the Criminal Procedure Act, and the judgment below is again decided as follows after pleading. The appeal by Defendant 4 is without merit, and it is dismissed in accordance with Article 364(4) of the Criminal Procedure Act.

The summary of the facts constituting the crime and the evidence acknowledged by the court is as follows: the facts constituting the crime of the court of first instance, the facts constituting the crime of the court of second instance, the facts constituting the crime of the court of second instance, the facts constituting the crime of the court of third instance, the facts constituting the crime of the court of first instance as indicated in the judgment, and the facts constituting the crime of the court of first instance as stated in the court of first instance, and the facts constituting the crime of the court of first instance as stated in the judgment.

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

A. Defendant 1: Articles 70(1)2 and 4(1) of the former Control of Firearms, Swords, Explosives, etc. Act (amended by Act No. 12960, Jan. 6, 2015; hereinafter the same) (the change of manufacturing method of explosives without permission, the change of manufacturing equipment without permission, the change of each fine), Articles 70(1)2 and 4(1) of the Act on the Safety Control of Firearms, Swords, Explosives, Etc. (the change of building structure of an unauthorized factory, the selection of fines), Articles 72 subparag. 1, 24(1) of the former Control of Firearms, Swords, Explosives, Etc. Act (amended by Act No. 12960, Jan. 6, 2015; hereinafter the same shall apply)

B. Defendant 2 Company: Articles 76, 70(1)2, and 4(1) of the former Control of Firearms, Swords, Explosives, etc. Act (amended by Act No. 76, 70(1)2, Article 76(1)2, and Article 4(1) of the Act on the Safety Control of Firearms, Swords, Explosives, Etc. (amended by Act No. 1006, Apr. 2, 200); Articles 76, 72 subparag. 1, and 24(1) of the former Control of Firearms, Swords, Explosives, Etc. Act (amended by Act No. 1006, Apr. 2, 200);

1. Aggravation of concurrent crimes (defendant 1, defendant 2);

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Code

1. Attraction in a workhouse (Defendant 1);

Articles 70(1) and 69(2) of the Criminal Act

Defendant 1 and Defendant 2 Co., Ltd. are going to know of the law in the future and refuse to violate the law, and the fact that the pertinent permission, etc. was obtained after the indictment of this case after the indictment of this case is favorable, and the fact that Defendant 1 had been sentenced to a fine is disadvantageous to that of Defendant 1. In full view of the above sentencing grounds, the sentencing grounds are the Defendant’s age, character and behavior, career, environment, background and motive leading to the crime, circumstances leading to the crime, circumstances after the crime, and all other matters pertaining to the sentencing specified in the records and arguments of

1. Summary of this part of the facts charged

Defendant 1 is the representative director of Defendant 2, who aims at manufacturing and selling chemical coal in Kimhae-si ( Address 1 omitted), and Defendant 3 is the head of the development department of the above company.

A person who intends to blast or burn powders shall obtain permission for the use of powders from the chief of a police station having jurisdiction over the place using powders.

A. Defendant 1 and Defendant 3 conspired to blast or burned powders without permission from the chief of the competent police station as follows.

1) Defendants 1 and 3

On March 2012, Defendant 1 instructed Defendant 3, who received a request for a smoke of bomb for the suppression of demonstration from an overseas bomb, Defendant 1, who was in receipt of a request for a smoke of bomb for suppression of demonstration.

Accordingly, Defendant 3, without the permission of the chief of the police station having jurisdiction over the time, opened a △△△△ Complex in the vicinity of Nonindicted Co. 1, Ltd., which was located in the △△△△△ Complex without the permission of the chief of the police station in charge of the police station. The defendant 3 opened a blasting by projecting one of the DaK-44(6B) which is

2) Defendants 1 and 3

On June 2014, Defendant 1 instructed Defendant 3 to extinguish the tear gas in order to verify the performance of the DK-38S for the suppression of demonstration.

Accordingly, Defendant 3 connected the detonating fuses to the above DK-38S 5 head around the time of Kimhae-si ( Address 6 omitted) and burned it with fire.

3) Defendant 2 corporation

Defendant Company committed the act of violating the duty of Defendant 1, the representative of Defendant Company, and Defendant 3, the employee, at the same time and place as Paragraph 1).

B. 1) Defendant 3, without the permission of the chief of the competent police station, burned the instant police station located in the Hanhae-si ( Address 6 omitted) on June 2014, 2014, with fire to the detonating fuses of the Baluu DK-38S 5 gun.

2) Defendant 2, Defendant 3, an employee of the Defendant, committed the above-mentioned act in relation to the Defendant’s business.

C. (1) On January 2012, Defendant 1 conducted blasting and burning tests by, without the permission of the chief of the competent police station, Defendant 2 conducted a blasting and burning test, such as launching gas guns with regard to tear gas produced by Defendant 2 stock company at the ( Address 2 omitted) Yoo-si ( Address 2 omitted).

2) On May 2013, Defendant 1 conducted blasting and burning tests by, without permission of the chief of the competent police station, the blasting and burning of the two kinds of tear gas guns produced by the Defendant Company, including gas emission guns, in the area of the shot mouths located near the ( Address 3 omitted) Seo-gu, Chungcheongnam-si, 2013.

3) Defendant 2 committed the same offense as described in paragraphs (1) and (2) with respect to the Defendant’s business at the time and place described in paragraphs (1) and (2), and as described in paragraphs (1) and (2).

D. (1) At around 14:00 on August 13, 2013, Defendant 1, without obtaining permission from the chief of the competent police station, blasting the DK-600 2 feet (128 feet), which is a multi-year tear gas in the storage area ( Address 4 omitted).

2) As set forth in paragraph (1), Defendant 1, the representative of Defendant 2 Co., Ltd., committed a violation in relation to the business of the Defendant Company.

2. Determination

As seen in Article 3.3. (c) of the Criminal Procedure Act, since each of the above facts charged is not a crime or there is no proof of a crime, it is so decided as per Disposition by the assent of all participating Justices on the bench to announce the summary of the judgment of innocence pursuant to Article 58(2) of the Criminal Act.

Judges Cho Sung-dae (Presiding Judge) Kim Dok-young decoration