Whether Article 96 and the former part of Article 25(2) of the former Industrial Sites and Development Act (amended by Act No. 96, Jan. 1, 2007) (amended by Act No. 2010, Jan. 1, 2007) apply mutatis mutandis to "the act of piling up goods without permission" under Articles 51(2)1 and 12(1)1 of the former Industrial Sites and

Article 22(1), (2), and (4) (see current Article 22(1), (2), and (5)) of the former Industrial Sites and Development Act (Amended by Act No. 11020, Aug. 4, 201); Articles 12(1), and 51(2)1 of the former Industrial Sites and Development Act (Amended by Act No. 12980, Jan. 6, 201); Articles 25(2), and 96 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects

Defendant 1 and one other

Defendants

Attorney Lee So-young

Suwon District Court Decision 2014No3943 decided December 4, 2014

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

The grounds of appeal are examined.

1. Article 22(1) of the former Industrial Sites and Development Act (amended by Act No. 11020, Aug. 4, 201; hereinafter “Industrial Sites and Development Act”) provides that “A project operator may expropriate or use land, etc. necessary for an industrial complex development project” (Article 22(1)); and Article 22(2) of the same Act provides that “Where an industrial complex is designated and publicly notified in applying paragraph (1), it shall be deemed that the project is approved and the project is publicly notified in accordance with the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Land Compensation Act”), and Article 22(4) of the same Act provides that “The Land Compensation Act shall apply mutatis mutandis to the expropriation or use under paragraph (1) except as otherwise provided in this Act.”

Furthermore, Article 10(1) of the former Industrial Sites Act (amended by Act No. 12980, Jan. 6, 2015) provides that any person who intends to engage in an act prescribed by Presidential Decree, such as piling up goods in an area or an industrial complex where a public announcement is made to hear the opinions of residents, etc. regarding the designation or alteration of an industrial complex, shall obtain permission from the competent authority (former part of Article 12(1)), and any person who violates Article 12(1) shall be punished by imprisonment for not more than six months or by a fine not exceeding 10 million won (Article 51(2)1).

After a public announcement of project approval is made pursuant to the former part of Article 25(2) of the Land Compensation Act, any person who intends to add or add goods to the land publicly notified shall obtain permission from the competent authority, and Article 96(1)(the former part of Article 25(2) provides that any person who violates the former part of Article 25(2) shall be punished by imprisonment with prison labor for not more than one year or by a fine not exceeding five million won, but the former Industrial Sites Act (amended by Act No. 12980, Jan. 6, 2015) provides a separate provision punishing the act of piling goods without permission under Article 51(2)1 and the former part of Article 12(1). As such, Article 96 and the former part of Article 25(2) of the Land Compensation Act (amended by Act No. 12980, Jan. 6, 2015) shall not be deemed to apply

2. According to the reasoning of the lower judgment and the evidence duly admitted by the first instance court, the Korea Water Resources Corporation (hereinafter “instant industrial complex development project”), pursuant to Article 17 of the former Industrial Sites Act (amended by Act No. 11020, Aug. 4, 201; hereafter the same shall apply in this paragraph), prepared a national industrial complex development plan for 2 complex (hereinafter “instant industrial complex development project”), and obtained approval from the Minister of Land, Transport and Maritime Affairs. The Minister of Land, Transport and Maritime Affairs publicly announced the national industrial complex development plan as prescribed by Article 208-4 of the former Industrial Sites Act on March 14, 2008 pursuant to Article 19-2 of the former Industrial Sites Act, and publicly announced the detailed items of land, etc. to be incorporated into the instant industrial complex development project from 208-502, Sept. 12, 2008 to 200 if Defendant 2 (hereinafter “Defendant 2”) were to be incorporated into the instant industrial complex development project.

3. Examining these facts in light of the legal principles as seen earlier, even if Defendant 1’s act of piling recycled aggregate on the land to be incorporated in the instant industrial complex development project constitutes “an act of piling up goods” subject to permission pursuant to the former part of Article 12(1) of the former Industrial Sites Act (amended by Act No. 12980, Jan. 6, 2015), it cannot be punished by applying the former part of Article 96 and the former part of Article 25(2) of the Land Compensation Act.

Nevertheless, the court below found the Defendants guilty of all the charges of this case on the premise that Article 96 and the former part of Article 25(2) of the Land Compensation Act shall apply in addition to the constructive recognition of the project approval and the announcement of the project approval under the Land Compensation Act where an industrial complex is designated and publicly notified. The court below erred by misapprehending the legal principles on the scope of application of the Land Compensation Act where the project approval and the announcement of the project approval are deemed granted pursuant to Article 22(2) of the Industrial Sites Act, which affected the conclusion of the judgment. The grounds of appeal assigning this error are with merit.

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

Justices Jo Hee-de (Presiding Justice)