2015 Doz. 6633 Revocation of an order to preserve air guns

1. Kim ①

Chicago-si

2. B.

Chicago-si

[Judgment of the court below]

Attorney principal Young-young

Chief of Gangseo-General

The Composition of Litigation Performers

March 30, 2016

April 2016 4.20

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

On April 7, 2015, the defendant issued an order of custody of air gun with respect to plaintiff Kim et al., and the order of custody of air gun on April 8, 2015 with respect to plaintiff Kim et al.

1. Details of the disposition;

A. Plaintiff ① obtained a hunting license from the Defendant on December 22, 2003 with respect to 1st air gun (total gun, 5.0mm: 5.0mm). On December 2, 2014, Plaintiff Kim Byung-si obtained a hunting license from the head of Young-si Office with respect to Plaintiff Jeon-si, 2013. Plaintiff Jeon-si (B) obtained a hunting license from the head of Young-si, 2013, and obtained a hunting license from the Defendant on March 4, 2015 with respect to 1st air gun (total gun and 5.0mm.).

B. On April 7, 2015, the Defendant issued an order (hereinafter referred to as “instant order of custody”) to the Plaintiff Kim I, and on April 8, 2015, the Defendant issued an order (hereinafter referred to as “instant order of custody”) to the Plaintiff B, the Plaintiff, B, to the effect that he/she may keep the Plaintiff’s firearms in the Defendant’s arms on the grounds of Article 47(2) of the former Act on the Safety Control of Total Potable, Swords, Explosives, Etc. (amended by Act No. 13429, Jul. 24, 2015; hereinafter referred to as “former Total Inspection Control Act”), and Article 70-2(2) of the Enforcement Decree of the same Act (hereinafter referred to as “the instant firearms”).

C. Plaintiff (i) submitted a instant gun to the Defendant on May 28, 2015, and Plaintiff B, Plaintiff B, respectively, on June 15, 2015, and thereafter the Defendant kept it until now.

[Ground of recognition] Unsatisfy, entry of Gap evidence 1 to 8, the purport of the whole pleadings

2. Whether the custody order of this case is lawful

A. The plaintiffs' assertion

1) According to Article 47(1)3 and 47(2) of the former Inspection and Control of Firearms Act, a permitting agency may issue a storage order where there is a need for public safety oil supply. However, there is no ground for the fact that the Plaintiffs are likely to cause firearms accidents by neglecting the instant guns, and thus, it is not necessary to issue a storage order for the maintenance of public safety.

2) The instant custody order, compared to the public interest to be achieved by this, was considerably high in infringement of the Plaintiffs’ private interest, such as the Plaintiffs’ property rights, and thus, deviates from and abused discretionary power.

(b) Relevant statutes;

The provisions of the attached Table shall be as specified in the statutes.

C. Determination

1) Determination as to whether it is necessary to maintain the public safety

In principle, the former Firearms Control Act provides that a person holding permission to possess guns, etc. possesses guns, etc., but a permitting agency may exceptionally prohibit or restrict possession when it is deemed necessary to prevent disasters or maintain public safety (Article 47(1)3). If deemed necessary to take measures such as the foregoing temporary prohibition or restriction, etc., he/she may order to keep guns, etc. in a place designated by the permitting agency (Article 47(2)).

The purport of the provision that limits the possession of guns lies in a fatal consequence on the life and body of the people in the event of a safety accident or crime caused by guns, etc., which may cause serious harm to the life and body of the people. However, in the event of a static or nearby shooting, a firearms accident using an air gun kept by an individual has occurred several times, resulting in social confusion and anxiety for the people. As such, there is a growing need for strengthening the management of guns, etc. to protect the lives and property of the people. Furthermore, a firearms accident may occur not only for planned crimes but also for any contingent cause, such as a dispute with neighbors, and thus, it is difficult to achieve the goal of ensuring public safety by predicting the possibility of an individual crime and determining the restriction differently.

From this background, the Act on the Control of Firearms (amended by Act No. 13429, Jul. 24, 2015) newly established Article 14-2 of the former Enforcement Decree of the Act on the Control of Firearms, which provides that a person who has obtained permission to possess guns shall, in principle, keep guns and ball or blank cartridges (hereinafter referred to as "Guns, etc.") in the designated place by the permission-granting agency while maintaining Article 47 of the former Act on the Measures, etc. for Before the public security. Article 3 of the Addenda of the same Act provides that a person who has already obtained permission to possess guns shall display guns, etc. at the designated place within one month from the date the Act enters into force, and accordingly, the former Enforcement Decree of the Act (amended by Presidential Decree No. 26611, Oct. 30, 2015) (amended by Presidential Decree No. 26858, Jan. 6, 2016).

In light of inherent risk of guns, etc., recent occurrence of firearms accidents, public opinion on such occurrence, and amendment of relevant statutes, it is reasonable to deem that the custody order of this case was issued in the situation necessary to maintain public safety. Therefore, this part of the plaintiffs' assertion is without merit.

2) Determination on the deviation and abuse of discretionary power

The purport and contents of the relevant Acts and subordinate statutes, namely, circumstances acknowledged in full view of the purport and purport of the entire pleading, i.e., (i) the legitimacy of the instant order to contribute to maintaining public safety by preventing in advance risks and disasters caused by guns, etc. by restricting possession of guns, etc.; (ii) the guns, etc. are highly likely to cause serious harm to the lives, bodies, or property of the people if safety in handling them is not ensured due to their nature and risk inherent in their use; thus, ordering those holding permission to possess guns, etc. to keep guns, etc. en bloc at their jurisdiction is an effective means to achieve the objective; and (iii) the instant order to keep guns, etc. is not to deprive themselves of possession itself, but to partially restrict the time and place of possession of guns, and thus, those holding permission to possess guns, etc. can not be deemed to be excessively infringed upon by being released from the permission to possess guns, etc. pursuant to Article 70-2(3) of the Enforcement Decree of the Inspection Act; and (iv) the Plaintiffs may not be deemed to have any inconvenience property rights or inconvenience due to exercise them.

3. Conclusion

Since the plaintiffs' claims are without merit, they are dismissed. It is so decided as per Disposition.

Judge Choi Jong-chul

Judges Kim Jong-young

Judges Hong Young-jin

Site of separate sheet

Related Acts and subordinate statutes

【former Act on the Safety Management of Firearms, Swords, Explosives, Etc. (Amended by Act No. 13429, Jul. 24, 2015)

Article 47 (Measures, etc. for Public Safety)

(1) Where deemed necessary to prevent disasters or to maintain public safety, a permitting agency may issue the following orders or take measures:

3. Temporary prohibition or restriction on the manufacture, sale, number, export and import, storage, possession, and disuse of guns, swords, explosives, gas sprayers, electroshock weapons, and crossbows, installers of explosives storage facilities, explosives users, and other handlers.

(2) Where a permitting agency deems it necessary to issue an order or take a measure falling under any of paragraph (1) 1 through 3, it may order to keep guns, swords, explosives, gas sprayers, electroshock weapons, and crossbows in a place designated by the permitting agency. In such cases, matters necessary for the transfer of guns, swords, explosives, gas sprayers, electroshock weapons, and crossbows subject to storage, procedures for storage and return, period of storage, etc. shall be prescribed by Presidential Decree.

Act on the Safety Management of Firearms, Swords, Explosives, Etc.

Article 14-2 (Storage of Guns)

(1) A person who is permitted to possess a gun pursuant to Article 12 or 14 shall keep the gun and ball or blank cartridges in a place designated by a permitting agency.

(2) Where a person who is permitted to possess a gun intends to use the gun for the permitted purpose or has a justifiable fire, he/she shall request the permitting agency to cancel custody. In such cases, he/she shall submit a written consent to collect location information so that he/she can confirm location information of a gun or possessor during the period of cancellation of custody.

(3) Where an application for cancellation of custody under paragraph (2) is not appropriate, the collection of location information is not consented, or where it is deemed necessary to maintain public safety, a permitting agency may choose not to cancel storage of a gun.

(4) Matters necessary for guns and ball or blank cartridges subject to storage, period and place of storage, saving and cancellation of storage, collection of location information, etc. shall be prescribed by Presidential Decree.

The Addenda No. 13429, July 24, 2015

Article 3 (Transition Measures concerning Safekeeping of Firearms)

(1) A person who is permitted to possess a gun pursuant to Article 12 or 14 as at the time this Act enters into force shall keep the gun and ball or blank cartridges in a place designated by a permitting agency within one month from the enforcement date of this Act pursuant to the amended provisions of Article 14-2.

(2) A permitting agency may revoke permission for possession of a gun and a gun that does not keep the gun and ball or blank cartridges pursuant to paragraph (1).

(1) Enforcement Decree of the former Act on the Safety Control of Firearms, Swords, Explosives, Etc. (amended by Presidential Decree No. 266111 on October 30, 2015, which was amended by Presidential Decree No. 26858 on January 6, 2016)

Article 14-3 (Storage, etc. of Firearms, etc.)

(1) Pursuant to Article 12 of the Act, a gun (limited to a rifle gun, rifle, hunting gun, or air gun; hereinafter in this Article and paragraph, the same shall apply) shall be prepared and issued to a person who has obtained permission to possess a gun.

(2) A gun possessor who has kept a gun and ball or blank cartridges pursuant to paragraph (1) may release storage and return the gun and ball or blank cartridges to the gun only in any of the following cases:

1. Where guns are used for permitted purposes;

2. Where guns are repaired or traded;

3. Other justifiable grounds recognized by the permitting agency exist.

(3) A gun possessor who intends to have guns in custody and ball or blank cartridges returned pursuant to paragraph (2) shall submit an application for release of custody prescribed by Ordinance of the Ministry of Information and Communication to the permitting agency, along with the following documents:

1. Reasons for getting back and documents evidencing the reasons therefor;

2. Certificates of custody under the proviso to paragraph (1);

3. A written consent to collect location information prescribed by Ordinance of the Ministry of the Interior;

Enforcement Decree of the Act on the Safety Management of Firearms, Swords, Explosives, Etc.

Article 14-4 (Storage, etc. of Firearms, etc.)

(1) A person who has obtained permission to possess a gun (limited to a rifle, machine gun, hunting gun, and air gun; hereafter the same shall apply in this Article and Article 14-5) pursuant to Article 12 of the Act shall keep the gun, ball or blank cartridges in the action designated by a permitting agency pursuant to Article 14-2 (1) of the Act. In such cases, the permitting agency shall prepare a certificate of custody prescribed by Ordinance of the Ministry of the Interior and issue it to a person who has obtained permission to possess the gun.

(2) A gun possessor who has kept a gun and ball or blank cartridges pursuant to paragraph (1) shall fall under any of the following subparagraphs:

3. Other justifiable grounds recognized by the permitting agency exist.

(3) A gun possessor who intends to have guns in custody and ball or blank cartridges returned pursuant to paragraph (2) shall submit an application for release of custody prescribed by Ordinance of the Ministry of Information and Communication to the permitting agency, along with the following documents:

1. Reasons for getting back and documents evidencing the reasons therefor;

2. Certificates of custody under the proviso to paragraph (1);

3. A written consent to collect location information prescribed by Ordinance of the Ministry of the Interior;

Article 70-2 (Guns Subject to Custody)

(2) The possessor of guns, etc. who receives a custody order under the provisions of Article 47 (2) of the Act shall keep them at a fixed place by the fixed date and time, and the permitting agency shall prepare a document proving custody and sign and seal it.