Defendant

Both parties

Jinaba

Attorneys Kim Yong-won et al.

Suwon District Court Decision 2006Gohap1194 Decided October 17, 2006

All appeals by the prosecutor and the defendant are dismissed.

1. Summary of grounds for appeal;

A. The gist of the prosecutor's appeal is that the defendant justifys his own illegal act without restoring the original state to the court of first instance, and in light of this, the sentencing (fine 2 million won) ordered by the court below is too uneasible and unfair.

B. The gist of the Defendant’s grounds for appeal is as follows: (a) in relation to paragraph (1) of the facts charged, installing a fireproof exhibition facility with a size not exceeding 33 square meters and a farming machine storage room with a size not exceeding 15 square meters in a plastic house may not be reported as minor acts; and (b) in relation to paragraph (2) of the facts charged, using a ornamental fish plantation and a work room for a stable for its original purpose is used; (c) the lower court erred by misapprehending the legal principles on special measures for the designation and management of development-restricted areas, and even if guilty, the lower court’s sentencing (two million won in fines) is too unreasonable.

2. Determination on whether the Act on Special Measures for Designation and Management of Areas of Restricted Development was violated

A. Judgment on the facts charged under paragraph (1)

(1) The Defendant asserts that his act constitutes a “minor act” falling under Article 11(3) of the Act on Special Measures for Designation and Management of Areas of Restricted Development and Article 7-2 of the Enforcement Decree of the same Act, which can be performed without permission or report.

Article 11(3) of the Act on Special Measures for Designation and Management of Areas of Restricted Development provides that "a minor act prescribed by the Ordinance of the Ministry of Construction and Transportation may be performed without obtaining permission or filing a report." Article 7-2 and attached Table 3-2 of the Ordinance of the Ministry of Construction and Transportation provides that "a minor act may be performed without obtaining permission or filing a report." However, Article 11(3) of the same Act provides that an act shall take effect after 6 months have elapsed since its promulgation by the Addenda, enacted by Act No. 7383, Jan. 27, 2005, and Article 3-2 of the same Act was newly established on August 10, 2005. Article 1(2) of the Criminal Act provides that "a minor act as prescribed by the Ordinance of the Ministry of Construction and Transportation may be performed without obtaining permission or filing a report," and the above provision provides that "a person shall be punished by the new Act if the act was committed for the past in accordance with the change of the ideology of the enactment of the penal Act, which was the reason for the punishment Act and its amendment and amendment.

On the other hand, Article 11(3) of the above Act does not amend or amend the Act from the consideration of anti-sexuality according to the change of the legal ideology, but it is reasonable to deem that the report was an “minor act” in the past as an unnecessary act for the simplification of administrative procedures, and there is no room to apply the more favorable new law.

Therefore, since the defendant's act did not provide for the exception that can be done without reporting in the around May 2005 when the above plastic house was installed, the defendant's act should be deemed to have been sentenced to punishment since it had already been completed before August 10, 2005 when the provision of attached Table 3-2 was newly established.

(2) Even if Article 11(3) and attached Table 3-2 of the newly established Act apply to past illegal acts, the instant vinyl do not include any exception that can be done without filing a report on the following grounds. According to the evidence duly examined and adopted by the court below, it can be acknowledged that the Defendant, as stated in the facts charged, has installed one vinyl of a size of 100 square meters on the site of the farm land without permission. The Defendant’s vinyl house is not installed for the first time, such as collection of excreta and tobacco, but not for the first time; ② it is installed in a wooden place, other than farmland defined in Article 2 of the Farmland Act; ③ it is not a non-permanent temporary temporary temporary object; ③ It is not a non-permanent temporary object; and it is not a building that needs to be permitted or reported since it fails to meet the necessary requirements under item (f).

In addition, the Defendant alleged that the above plastic house constitutes a fireproof display facility and a cream storage room, etc. under the premise that it may be used by dividing it into the above plastic house. However, the above plastic house constitutes one unit in itself, and even if the Defendant used it insidely and for various purposes, the above plastic house itself should be deemed an illegal building. ② Even if it is determined by dividing it into the floor area, the main purpose of the plastic house is the ornamental fishing plantation, and ③ fireproof exhibition facility is not only installed by the Defendant for sale, but also installed by the wall, so it does not constitute the above "cirth". ④ Moreover, the Defendant appears to have been installed after committing a crime to avoid the legal network in the process of trial, and ⑤ The part asserting that the said plastic house is not an "agricultural purpose," but also an "temporary facility," and thus, it does not constitute a "cirp item". Therefore, the Defendant’s assertion is without merit.

B. Judgment on the facts charged under paragraph (2)

(1) The Defendant asserts that: (a) using “satchhouse” within the existing livestock shed as “satch fish plantation”; and (b) using “feed storage house” as “place of work” constitutes “satishouse” classified in attached Table 1 of Article 3-4 of the Enforcement Decree of the Building Act, which is an existing usage; and (c) thus, permission or reporting is not necessary for change of purpose.

(2) However, in Article 2 (1) 2 of the Building Act, the term "use of a building" defined as "use of a building" grouped by similar structure, purpose, and form. Article 2 (2) of the same Act provides that the types of buildings belonging to each usage are classified as shown in attached Table 1 of the Enforcement Decree of the Building Act. In light of the above provision, even a building classified as the same Gun can not be used for the same purpose. Furthermore, in attached Table 1 of Article 13 (1) of the Enforcement Decree of the Act on Special Measures for Designation and Management of Areas of Restricted Development and Article 13 (1) 1 of the same Enforcement Decree of the Act on Special Measures for Designation and Management of Areas of Restricted Development and the detailed classification of the types of facilities, such as stable, bean industry cultivation, fish farms, and compost, raising livestock within a building classified as "a stable" under the Building Act, it is reasonable to deem that it is strictly used for any purpose different from Article 11 of the Act on Special Measures for Designation and Management of Areas of Restricted Development and Management.

(3) Therefore, the Defendant’s use of composts (the place where garbage collected from livestock) and feed storages for each ornamental fish shed and place of work should be deemed as changing the use of facilities necessary for raising ornamental fish as facilities necessary for raising ornamental fish, rather than using livestock as “livestock sheds.” In addition, even under subparagraph 5 (a) of attached Table 7-2 of the Enforcement Decree of the Act on Special Measures for Designation and Management of Areas of Restricted Development and Development, the part used by the Defendant as a ornamental fish breeding place does not constitute temporary work places stipulated in “where the existing buildings, such as livestock pens, are temporarily used for daily life, such as goods necessary for the daily life, products, temporary storage of livestock products, and kis and horses,” and thus, the Defendant’s use should be deemed as unlawful alteration of use as long as there was no permission from the competent authority. Therefore, the Defendant’s above assertion is without merit.

3. Determination of sentencing

The court below's sentencing is appropriate in light of the following: (a) the Defendant was found to have been discovered in a relatively short period after committing a crime; (b) the Defendant attempted to use a part that is not necessary for existing livestock shed for farming business; (c) there is room for misunderstanding the interpretation of statutes; (d) there was a dispute with the competent authority over the subject matter subject to the cancellation of the development restriction zone; and (e) there was no particular criminal record; and (c) the Defendant served for the State; (d) the fact that the Defendant has not yet been restored to its original state;

4. Conclusion

Therefore, since the appeal by the prosecutor and the defendant is without merit, it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Kim Tae-Gyeong (Presiding Judge)