In a case where a building with a floor area of 179.58 square meters, which was approved for use as a sales facility, is continuously used for the purpose of an entertainment tavern, before and after the enforcement of the Building Act amended by Act No. 5895 on February 8, 199 (negative), whether the crime of violating the Building Act is established (negative

In a case where a building with a floor area of 179.58 square meters which was approved for use as a sales facility before and after the enforcement of the Building Act as amended by Act No. 5895 on February 8, 199 continues to be used for the purpose of entertainment tavern, Article 14(1)3 and (3) of the Building Act before and after the amendment by Act No. 5895 on February 8, 199, and Article 14(4) [Attachment Table 16] 3(d) and (2) of the Enforcement Decree of the Building Act (amended by Presidential Decree No. 16284 on April 30, 199), where a person intends to change the purpose of use of a building approved for use as a sales facility to an entertainment tavern, even if the total floor area used for such purpose is 200 square meters or more, permission of the head of the Gu, etc. shall be required to use it as a sales facility before and after the amendment by Presidential Decree No. 1481, May 19, 1998

Article 14(1)3 and (3) of the former Building Act (Amended by Act No. 5895, Feb. 8, 1999); Article 14(2) and (3)1 of the former Building Act (Amended by Act No. 5895, Feb. 8, 1999); Article 14(4) [Attachment Table 16] subparagraph 3(d) and (2) of the former Building Act (Amended by Presidential Decree No. 16284, Apr. 30, 199); Articles 14(4)1 and 3-4 [Attachment Table 1] of the former Building Act (Amended by Presidential Decree No. 16284, Apr. 30, 199); Article 14(4)1 and 3-4 of the former Building Act (Amended by Act No. 16284, Apr. 30, 199);

Defendant 1 and one other

Defendants

Attorney Cho Jae-won

Seoul District Court Decision 2000 Godan599 delivered on May 19, 2000

The lower judgment is reversed. The Defendants are not guilty.

The summary grounds of appeal are examined.

1. According to the reasoning of the judgment below, the court below found Defendant 1 guilty by applying Articles 81(2) and 78(1) and 14(2) of the former Building Act (amended by Act No. 5895 of Feb. 8, 1999 and enforced from May 9 of the same year) and Article 30 of the Criminal Act to the following facts: from March 1998, Defendant 1 conspired with the non-indicted, the non-indicted 1 used sales facilities of the first floor of the 179.58 square meters of the Hycheon-dong, Gangnam-gu, Seoul as an entertainment drinking house without permission; and Defendant 2, the management department of the above defendant 1 used the sales facilities as an entertainment drinking house for the business of the defendant 2 corporation without permission.

2. The Defendants’ act of violating the Building Act, however, continued to use a building with a floor area of 179.58 square meters, which was approved for use as a sales facility, before and after the enforcement of the Building Act as amended by Act No. 5895 on February 8, 199. Article 14(1)3 and (3) of the Building Act before the above amendment, and Article 14(4) [Attachment Table 16] 3 Item (d) and (2) of the Enforcement Decree of the Building Act (amended by Presidential Decree No. 16284 of Apr. 30, 199. According to the above Article 14(4) [Attachment Table 16] 3 Item (d) and (2), in a case where the Defendants intend to change the use of a building approved for use as a sales facility into an entertainment tavern, it is necessary to obtain permission from the head of the Gu, etc., and even if the total floor area of the building is 179.58 square meters, it may be freely changed the use without permission and report.

Therefore, the defendants' act of using a building with a floor area of 179.58 square meters, which was approved for use as a sales facility, continuously for entertainment tavern use before and after the enforcement of the amended Building Act, does not constitute a crime even under the amended Building Act as well as the amended Building Act.

Nevertheless, the court below found the Defendants guilty by applying the provisions of the Building Act prior to the above amendment, and it constitutes a case where there is an error in the application of the law under Article 372 (1) of the Criminal Procedure Act. Thus, the ground of final appeal is with merit.

Therefore, the judgment of the court below shall not be reversed, and the judgment of the court below shall be reversed in accordance with Article 396 of the Criminal Procedure Act and it shall be decided directly by the Supreme Court, since the records of trial and the evidence examined by the court

3. The facts charged against the Defendants are as stated in Paragraph 1 above, and as stated in Paragraph 2 above, the facts charged in this case does not constitute a crime even under the Building Act prior to the amendment as well as the amended Building Act.

4. Therefore, the judgment of the court below is reversed, and the defendants are acquitted pursuant to the former part of Article 325 of the Criminal Procedure Act. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Han-gu (Presiding Justice)