Defendant 1 and one other

Defendants

St. Shelly

Attorney Kang Chang-ro

Suwon District Court Decision 2010Gohap2454 Decided February 9, 2011

The judgment of the court below is reversed.

Defendant 1 shall be punished by a fine for negligence of KRW 5,00,000 and by a fine of KRW 3,000,000, respectively.

If the Defendants did not pay each of the above fines, the Defendants shall be confined in the Labor House for the period calculated by converting each of 50,000 won into one day.

To order the Defendants to pay an amount equivalent to the above fines.

Of the facts charged in the instant case, the facts charged that Defendant 1’s illegal reclamation of wastes and Defendant 2 violated the method of disposal of industrial wastes are acquitted.

1. Summary of the grounds for appeal by the Defendants (unfair sentencing)

The punishment of the lower court against the Defendants (six months of imprisonment, two years of suspended execution) is too heavy.

2. Ex officio determination

A. Where a number of acts or acts falling under the name of the same crime continue to be conducted for a certain period under the single and continuous criminal intent and where the legal benefits from such damage are the same, each of these acts shall be punished by a single comprehensive crime (see Supreme Court Decision 2006Do3172, Sept. 8, 2006).

B. Of the facts charged in the instant case, the gist of Defendant 1’s illegal reclamation of wastes and the violation of the method of disposal of industrial wastes against Defendant 2 is as follows: “Defendant 2, from November 9, 2009 to January 17, 2010, entrusted Defendant 1 with the disposal of non-permission for waste disposal business; Defendant 1, from around June 14, 2009 to around January 17, 2010, deemed that Defendant 2’s act of carrying in the instant aggregate extraction business for a certain period of time as stated in the facts charged, including 5,016 tons of inorganic sewage entrusted by Defendant 2 from around January 17, 2010 and 1,70 tons of in total, and Defendant 2’s act of carrying in the instant aggregate extraction business for a period of time as stated in each of the above facts charged by Defendant 3 without permission. In light of the above legal principles, it is reasonable to recognize that each of the above acts was carried in the instant aggregate extraction business for a certain period of time.

C. Meanwhile, if a summary order becomes final and conclusive as to a part of the crimes which constitute a single comprehensive crime, the summary order shall be rendered at the time of the issuance of such summary order (based on the time of the pronouncement of a fact-finding court judgment), and shall be punished only for the subsequent crimes (see Supreme Court Decision 94Do1318, Aug. 9, 199). According to the records, the Defendants received a summary order of KRW 5 million from Suwon District Court on April 9, 201 against Defendant 1; KRW 10 million against Defendant 2; KRW 10 million against Defendant 2; Defendant 2 shall be sentenced to a summary order of KRW 00,000 as stated in the above summary order of KRW 20; Defendant 2 shall be deemed to have been entrusted with the above summary order of KRW 10,000 as stated in the summary Order of KRW 3; Defendant 1 shall be deemed to have been released from each of the above facts charged by the lower court on January 16, 2009.

D. Nevertheless, the court below found the Defendants guilty of the facts charged as stated in the above sub-paragraph (b) and the facts charged in the above summary order to be concurrent crimes under the former part of Article 37 of the Criminal Act. Thus, the judgment of the court below is erroneous in the misapprehension of law that affected the conclusion of the judgment, and in this respect, each of the above parts of the judgment of the court below can no longer be maintained. Since each of the above parts and the remaining facts charged against the Defendants are in concurrent crimes under the former part of Article 37 of the Criminal Act, the court below sentenced to one imprisonment for each of the Defendants. Accordingly, the judgment of the court below against the Defendants cannot be maintained in its entirety.

3. Conclusion

Therefore, the judgment of the court below is reversed in its entirety pursuant to Article 364(2) of the Criminal Procedure Act without examining the defendants' respective arguments on unfair sentencing, on the ground that the above reasons for reversal of authority are the above, and it is again decided as follows.

1. Defendant 1

Anyone shall, when he/she treats wastes in a manner that fails to meet the standards for and methods of treating wastes in accordance with the Wastes Control Act, modify methods of disposal and take other necessary measures.

The Defendant illegally buried 912 tons of inorganic sludge on the farmland of Gi-si from November 16, 2009 to December 2, 2009, and was notified by the competent authority on April 16, 2010, and did not implement an order to take measures for the proper treatment of inorganic sludge.

Accordingly, the Defendant did not comply with an order to take measures for appropriate treatment of 912 tons of illegal buried wastes notified by the competent authorities.

2. Defendant 2

The Defendant is a representative of the “○ Industry Development” located in Yeongdeungpo-gu ( Address 6 omitted), and is a person who manages all the business affairs of the said company, such as environmental management affairs.

An industrial waste discharger shall enter details concerning the transfer and receipt of wastes in the electronic information processing program every time he/she discharges industrial wastes.

Nevertheless, from November 9, 2009 to January 17, 2010, the Defendant did not enter details on the transfer and takeover of inorganic trucks 5,160 tons (the sum of the 24 tons of inorganic trucks 1, 24 tons of inorganic type, 24 tons of inorganic number 5,016 tons of inorganic number (3,344 cubic meters) and 24 tons of inorganic number (24 tons of inorganic number 5 omitted), which were buried in the daily unit of the 24 tons of inorganic truck, and 144 tons of inorganic number (144 tons of 96 cubic meters) generated from the development of ○ industry into the electronic information processing program.

The summary of the evidence of each of the above facts constituting the crime is the same as that of the judgment of the court below, and thus, it is cited in accordance with Article 369 of the Criminal Procedure Act.

1. Article relevant to the facts constituting an offense and the selection of punishment;

(a) Defendant 1: Article 65 subparag. 10 and Article 48(1) of the Wastes Control Act (Selection of Fines);

B. Defendant 2: Article 66 Subparag. 5 and Article 18(3) of the Wastes Control Act (to select a fine in general, by comprehensively taking into account)

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Code

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Defendant 1’s crime of this case is not committed since the illegal reclamation of wastes was controlled, and its nature is not good, and the crime of this case of this case of Defendant 2 is also not less likely to affect the environment. Meanwhile, the defendants reflects their mistakes, and are returning to the original state as soon as possible, and other factors of sentencing specified in the pleadings of this case such as character, conduct, motive, means and consequence of the crime of this case are considered comprehensively and comprehensively considered.

Of the facts charged in the instant case, the summary of the illegal reclamation of wastes against Defendant 1 and the violation of the method of disposal of industrial wastes against Defendant 2 is as stated in Article 2-2-b of the instant indictment. Since each of the above parts constitutes a final and conclusive judgment as seen in Article 2-3(c), the Defendant is acquitted in accordance with Article 326 subparag. 1 of the Criminal Procedure Act.

[Attachment]

Judges Lee Jin-hee (Presiding Judge)

Note 1) Attached Table 1, 2, 5,016 tons in total, and 144 tons in total, as of January 16, 2010, filled up in the wife population ( Address 5 omitted) large.

Note 2) As set out in the annexed List of Offenses.

3) Furthermore, among the facts charged in the instant case, the fact that the content of the waste acceptance and delivery against Defendant 2 was not included in the same reason is an inclusive crime, and the lower court has erred by recognizing this part as a concurrent crime under the former part of Article 37 of the Criminal Act by each act.