Whether it is possible to establish a charnel house in a religious assembly hall in the Class 1 exclusive residential area in Seoul Special Metropolitan City (negative)

Article 15 subparag. 4 of the Act on Funeral Services, Etc., Article 14(2)1 of the Enforcement Decree, Articles 36(1) and 76(1) of the National Land Planning and Utilization Act (Amended by Act No. 8564, Jul. 27, 2007); Article 71(1)1 of the Enforcement Decree of the Act; Article 25 of the Urban Planning Ordinance (Amended by Ordinance No. 4449, Nov. 20, 2006)

Supreme Court Decision 2006Du3612 Delivered on July 6, 2006

Defendant

Defendant

Attorney Park Yong-ok

Seoul Central District Court Decision 2007No264, 2007No2371 decided Dec. 6, 2007

The appeal is dismissed. 85 days out of detention days after the appeal shall be included in the original sentence.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Article 15 subparagraph 4 of the Act on Funeral Services, Etc., Article 14 (2) 1 of the Enforcement Decree of the same Act, Article 36 (1) 1 (a) and Article 76 (1) of the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”), Article 71 (1) 1, Article 71 (1) 2 (d) and (e) of the Enforcement Decree of the same Act, subparagraph 2 (d) and (e) of attached Table 2 of the attached Table 2 of the Enforcement Decree of the same Act, and subparagraph 4 (e) and 5 (a) of the Enforcement Decree of the Building Act (amended by Presidential Decree No. 19466 of May 8, 2006; hereinafter the same shall apply) [Attachment Table 1] subparagraph 4 (e) and 5 (a) of the Enforcement Decree of the National Land Planning and Utilization Act, in principle, may not be installed in a residential area.

However, Article 25 of the Urban Planning Ordinance of the Seoul Special Metropolitan City (amended by Ordinance No. 4449 of Nov. 20, 2006) provides for "any building that can be constructed within a Class-I exclusive residential area" and subparagraph 4 of Article 25 provides for "a religious assembly hall (limited to a building that has no other type facilities and outdoor loudspeaker system) among Class-4-II neighborhood living facilities under subparagraph 4 of the attached Table 1 of the Enforcement Decree of the Building Act" and subparagraph 5(a) of subparagraph 5 of the attached Table 1 of the Enforcement Decree of the Building Act (limited to a building that does not fall under Class-I neighborhood living facilities and does not have any other type facilities and outdoor loudspeaker system and does not have any other type facilities)" and it does not separately provide for "a charnel house installed within a religious assembly hall," and it does not include "a charnel facility installed within a religious assembly hall" in the Class-I exclusive residential area of the Seoul Special Metropolitan City.

In the same purport, the court below is just to determine that the site of the instant charnel house is an exclusive residential area, and there is no error of law by misunderstanding the provisions of Acts and subordinate statutes concerning the establishment of charnel houses and the Seoul Metropolitan Government Ordinance.

2. As to the grounds of appeal Nos. 2 and 3

Article 16 of the Criminal Code provides that "the act of misunderstanding that one's act does not constitute a crime under Acts and subordinate statutes shall not be punishable only when there is a justifiable ground for misunderstanding." It does not mean a simple legal site, but it means that it shall not be punishable if there is a justifiable ground for misunderstanding that one's act is generally a crime, but it is recognized that it does not constitute a crime as permitted by Acts and subordinate statutes in his own special circumstances, and that it does not constitute a crime (see Supreme Court Decision 2003Do4128, Apr. 28, 2006).

In light of the records, it is reasonable that the court below acknowledged the facts as stated in its reasoning based on the adopted evidence, and even though the defendant knew the fact that it is impossible to install a charnel facility to the inspection of this case, it is reasonable to recognize that the defendant by deceiving the victims as stated in its reasoning, and there is no error of law such as misunderstanding of legal principles as to the criminal intent of mistake or deception, or violation of the rules

3. As to the fourth ground for appeal

In light of the records, the court below's finding facts as stated in its adopted evidence, and finding the guilty of the defraudation of the Pamplet among the facts charged in this case is just, and there is no violation of the rules of evidence against the rules of evidence.

4. Therefore, the appeal is dismissed, and part of the detention days after the appeal is included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)