Even if a person possesses a shooting air gun for shooting, not for shooting matches, for hunting or for the relief of harmful birds, under the interpretation of control Acts and subordinate statutes, such as guns, swords, explosives, etc., whether he/she is required to obtain permission for possession (affirmative), and whether an act of obtaining permission for possession without attaching a certificate of shooting players by pretending that the air gun for shooting is not for shooting matches, as if it were not for shooting matches, constitutes a case where he/she obtained permission for possession of guns by false or other unlawful means (affirmative)

Article 12(1) and (3) of the Control of Firearms, Swords, Explosives, etc. Act (hereinafter “the Act”), Article 14(1)2 of the Enforcement Decree of the Control of Firearms, Swords, Explosives, etc. Act (hereinafter “Enforcement Decree”), and Article 21(1) of the former Enforcement Rule of the Control of Firearms, Swords, Explosives, etc. Act (amended by Ordinance of the Ministry of Public Administration and Security No. 196, Feb. 22, 201; hereinafter “Enforcement Rule”), comprehensively, the scope of permission to possess guns, etc., i.e., if it is required to obtain permission to possess guns, etc., by obtaining the authorization of prescribed in Article 12(3) of the Act, and the Enforcement Rule of the Control of Firearms, Guns, Swords, Explosives, etc. (hereinafter “Enforcement Rule”), should be deemed to have been prescribed by the permission of possession of guns, etc., which is not a justifiable one of the administrative rules, and thus, should be construed as having the nature and effect of permission to possess guns for shooting guns, etc.

Article 12(1) and (3) of the Control of Firearms, Swords, Explosives, etc. Act, Article 3 and Article 14(1)2 of the Enforcement Decree of the Control of Firearms, Swords, Explosives, etc. Act, Article 21(1) and (4)3 of the former Enforcement Rule of the Control of Firearms, Swords, Explosives, etc. Act (wholly amended by Ordinance of the Ministry of Public Administration and Security No. 196, Feb. 22, 201)

Supreme Court Decision 2005Do591 Decided May 10, 2007

Defendant 1 and six others

Prosecutor

Seoul Central District Court Decision 2011No868 Decided December 8, 2011

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

The grounds of appeal are examined.

1. Summary of the facts charged in this case

The summary of the facts charged of the instant case is that “the Defendant obtained permission to possess a gun in a false or other unlawful manner by stating that it is for the use of harmful trees in the application column for permission to possess the gun in order to obtain permission to possess the instant gun manufactured for shooting and for export purposes,” and without attaching the purchaser’s certificate from October 17, 2006 to September 29, 2008, to sell the instant gun to the general public, other than shooting players.”

2. The judgment of the court below

The court below rejected the judgment of the court of first instance which convicted the Defendants on the following grounds: although the Defendants did not submit the certificate of shooting players in order to obtain permission for the possession of the instant firearms (shot gun) manufactured for shooting and export purposes, the Defendants did not constitute a crime: on the grounds that the facts charged in this case by the Defendants did not constitute a crime, and sentenced them not guilty.

Article 72 subparagraph 7 of the Control of Firearms, Knives, Swords, Explosives, etc. Act (hereinafter referred to as the "Act") provides that "any person who has obtained permission or license under this Act by fraudulent or other illegal means shall be punished by imprisonment with prison labor for not more than three years or by a fine not exceeding seven million won," Article 12 (1) of the Act provides that "where he/she intends to possess a gun, etc., he/she shall obtain permission from the commissioner of the competent district police agency or the chief of the competent police station," and Article 12 (3) of the Act provides that "the scope of permission to possess a gun, etc. shall be prescribed by Presidential Decree by type and use," and Article 14 (1) of the Enforcement Decree thereof (hereinafter referred to as the "Enforcement Decree") provides that "the types of guns, etc. and the scope of permission to possess a gun, etc. by use pursuant to Article 12 (3) of the Act shall be as follows:

Of the three purposes of obtaining permission to possess air guns as above, there is no provision that permits to obtain permission only for the limited purposes at the time of permission for manufacturing, as well as the Enforcement Decree and Enforcement Rules thereof, and thus, a person who intends to obtain permission to possess air guns shall obtain permission to obtain permission to obtain permission to obtain permission to obtain permission to obtain permission to obtain permission to meet one of the "Hunting, harmful birds and animals remedy or shooting match", which is the purpose permitted for air guns under Article 14(1) of the Enforcement Decree, and shall not be deemed to have obtained permission to obtain permission only for the limited purposes at the time of permission

3. Judgment of the Supreme Court

The above judgment of the court below is ultimately justified for the following reasons, since air guns which obtained permission to manufacture for shooting can also be permitted to possess for hunting and harmful water for the purpose of remedying harmful water, not for shooting games.

Article 12(1) of the Act provides that when a person intends to possess a gun, etc., he/she shall obtain permission from the commissioner of the competent district police agency or the chief of the competent police station, as prescribed by Ordinance of the Ministry of Public Administration and Security, and among air guns, he/she shall obtain permission from the chief of the competent police station, and Article 12(3) of the Act provides that the scope of permission to possess a gun shall be prescribed by Presidential Decree by type and use. According to the delegation from each of the above provisions, Article 14(1)2 of the Enforcement Decree provides for the scope of permission to possess a gun by type and use as mentioned above, and Article 21(1) of the Enforcement Rule thereof (amended by Ordinance of the Ministry of Public Administration and Security No. 196, Feb. 22, 201; hereinafter “Enforcement Rule”) provides that “a person who intends to obtain permission to possess a gun pursuant to Article 12(1) of the Act shall submit an application for permission to possess a gun to

In full view of the above provisions, with regard to the scope of permission to possess guns, etc., i.e., whether to obtain permission to possess guns, etc. in any case, the Enforcement Decree shall obtain the authorization under Article 12(3) of the Act and determine the type and use of guns, etc., and with regard to the specific requirements for permission to possess, the Enforcement Rule shall be deemed to have provided for by the authorization under Article 12(1) of the Act. In addition, in cases where administrative rules such as the above Enforcement Rule provide for supplement of statutes by the authorization of authority, administrative rules shall be deemed to have the nature and effect of external binding legal orders in combination with the provisions of the relevant statutes (see Supreme Court Decision 2005Do591, May

Meanwhile, Article 3 of the Enforcement Decree, which designates the kinds of guns, classify the air gun into a shot gun and a shot air gun. Article 21(4)3 of the Enforcement Rule provides that one of the attached documents at the time of obtaining permission to possess a gun, etc. shall be construed as “shot player certificate (limited to the possession of a shooting gun)” and it is reasonable to interpret that a shooting player certificate should be submitted to obtain permission to possess a shooting air gun. Ultimately, even if it is possible to possess a shooting air gun for non-shot games or harmful water relief purposes under the provision of Article 14(1)2 of the Enforcement Decree, it is possible to obtain permission to possess it, as prescribed by the Enforcement Rule, even if it does not meet the qualification requirements, if the gun was possessed without attaching it, and if it was permitted to possess it without attaching it, it constitutes a case where the person obtained permission to possess it by false or other unlawful means.

Nevertheless, the court below held that the defendants should submit the certificate of shooting player in order to obtain permission for possession of the instant firearms, that is, without making any judgment as to whether the instant firearms with knowledge that they are shooting air guns and concealed them, and stated them as harmful water relief in the column for the use of the application for permission for possession, the air guns for which permission for shooting was granted under the interpretation of statutes can be permitted for possession for use of hunting and harmful water, not for shooting games, and in such a case, the certificate of shooting player is not required to be submitted. In so doing, the court below erred by misapprehending the legal principles on the interpretation of Article 12 of the Act, which affected the conclusion of the judgment, and the prosecutor's ground of appeal pointing this out has merit.

4. Conclusion

Therefore, the lower judgment is reversed by the assent of all participating Justices, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition.

Justices Ahn Dai-hee (Presiding Justice)