Whether an act prohibited in school environmental sanitation and cleanup zone pursuant to Article 6 (1) of the School Health Act is engaged in business activities at the facilities prescribed in the subparagraphs of the same paragraph (affirmative)

Article 6 (1) of the School Health Act provides that no person shall conduct acts and facilities falling under any of the following subparagraphs in school environmental sanitation and cleanup zones, and subparagraph 1 provides that acts and facilities that interfere with learning and school health and sanitation in excess of the standards set by the Clean Air Conservation Act, etc. shall be prohibited. In subparagraphs 2 through 19, only the name of facilities, such as livestock wastewater discharge facilities (No. 7), hotels, and speculative places, shall be listed in the provisions of Article 6 (1) of the School Health Act. In light of the language and legislative intent of Article 6 (1) of the School Health Act, each of the following facilities shall be deemed to conduct business activities:

Articles 6 (1) and 19 of the School Health Act

Supreme Court en banc Decision 98Do3665 delivered on November 16, 2000 (Gong2001Sang, 100)

Defendant

Prosecutor

Gwangju District Court Decision 2012No1407 Decided October 24, 2012

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

The grounds of appeal are examined.

Of the facts charged in this case, the summary of the violation of the School Health Act is that no person is allowed to discharge livestock wastewater in school environmental sanitation and cleanup zone, but the Defendant installed original raising facilities, which are livestock wastewater discharge facilities, on November 19, 2010, on the land outside the 104m radius from the boundary of the ○○ Elementary School (hereinafter omitted) and four lots outside the YY-gun, Jeonyang-gun, the 104m radius.

The court below affirmed the judgment of the court below, on November 19, 2010, which found the defendant not guilty on the ground that the defendant's interpretation of the facts charged that the defendant installed the original breeding facility on November 19, 2010 to the effect that "the "establishment of the original breeding facility" was stated as the charges, and that the defendant did not dispute whether the defendant engaged in the act using the original breeding facility using the original breeding facility and did not have res judicata effect on November 19, 2010," and that "the defendant did not install the original breeding facility on November 19, 2010," and that the defendant installed the original breeding facility on November 19, 2010 and the defendant's act of using the original breeding facility is completely different from the method of crime, and that it is not completely different from the method of crime.

However, the above determination by the court below is difficult to accept for the following reasons.

Article 6 (1) of the School Health Act provides that no person shall conduct acts and facilities falling under any of the following subparagraphs in school environmental sanitation and cleanup zones, and subparagraph 1 provides that acts and facilities that interfere with learning and school health and sanitation in excess of the standards set by the Clean Air Conservation Act, etc. shall be prohibited, while subparagraphs 2 through 19 provide that only the names of facilities, such as livestock wastewater discharge facilities (No. 7), hotels, and speculative places, shall be listed. The acts prohibited by Article 6 (1) of the School Health Act shall be deemed to conduct each act in each of the following facilities in light of their language and legislative intent (see Supreme Court en banc Decision 98Do365 delivered on November 16, 200).

According to the records, the prosecutor initially prosecuted that the defendant installed the original breeding facility of this case on or around May 20, 2010, but found that the defendant installed the original breeding facility of this case and raised the original breeding facility of this case on or around April 20, 2010 without reporting on installation of livestock excreta emission facilities, and issued a summary order on November 18, 2010 due to the crime of violation of the Act on the Management and Use of Livestock Excreta, the prosecutor changed the date of the crime into or around November 19, 2010. The first instance court acknowledged the fact that the defendant continuously raised the original breeding facility of this case after receiving the summary order, while the violation of the School Health Act established by installing the original breeding facility of this case to the school sanitation and cleanup zone of this case is an immediate crime, and there is no evidence to acknowledge that the defendant installed the original breeding facility of this case on November 19, 2010, and thus, the prosecutor's act of using the original breeding facility of this case constitutes an act of violation of Article 6 (1) of the School Health Act.

In light of the above language and text of Article 6 (1) 7 of the School Health Act, the facts charged as to the violation of the School Health Act are deemed to have been written accordingly in accordance with the language and text of the above provision that "shall not operate livestock wastewater discharge facilities." According to the purport of the above Supreme Court en banc Decision, prohibited under the above provision is not only an act of installing original breeding facilities but also an act in original breeding facilities. Since there may be misunderstanding of the meaning of the facts charged as stated in the above facts charged, the meaning of the facts charged is clear if the purport of "act in original breeding facilities" is stated in the facts charged. However, even if it was not so, it cannot be deemed that the facts charged as stated in the above facts charged is unclear or erroneous, and in light of the above legal principles, the above facts charged refers to "act in original breeding facilities."

Furthermore, as seen earlier, the prosecutor clearly stated the grounds of appeal and the statement on the first trial date of the lower court that the above facts charged refer to the act of installing original raising facilities, not the act of installing original raising facilities, but the act of doing business in original raising facilities. Considering such circumstances, it is difficult to deem that the Defendant’s defense right was infringed on on by deeming that the aforementioned facts charged were stated

Therefore, the court below should have made a judgment on the premise that the facts charged regarding the violation of the School Health Act was engaged in the business at the original breeding facility, but there was an error of law by viewing that only the act of installing the original breeding facility was prosecuted in accordance with the language and text thereof.

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 Park Poe-dae (Presiding Justice)