The meaning of an act of establishing an unauthorized corporate cemetery prohibited under Article 39 subparag. 1 of the former Act on Funeral Services, Etc. (i.e., the act of creating a site for the installation of a tomb), and whether such act may be interpreted to mean that an act should be accompanied by the act of completing the installation or burial of a tomb in the creation of a tomb (negative)

According to Articles 2, 14(1)4, and (3), 39 subparag. 1, and 40 subparag. 2, 5, and 9 of the former Funeral Act (amended by Act No. 13108, Jan. 28, 2015; hereinafter “former Funeral Act”), the Funeral Act clearly separates the meaning of graveyards, graves, graves, and burial, and separates all acts of installation, grave installation, and burial in violation of the former Funeral Act. In addition, the Funeral Act requires the permission of the Mayor, etc. for the “establishment and management of a corporate cemetery,” while requiring the permission of the Mayor, etc. for the “establishment and management of a cemetery” of a corporate cemetery, provides that only the “establishment” of a corporate cemetery, which is not permitted, shall be punished, and criminal punishment against a person who violates his/her duty to take measures, such as the authority to close the market, etc. for an existing corporate cemetery, etc., and the authority to take such measures.

As above, the former Funeral Act clearly separates and uses the term “grave” and “pathy”, and comprehensively takes account of the method of funeral and matters concerning the installation, creation, and management of funeral facilities to prevent harm to public health and hygiene, as well as the purpose of contributing to the efficient utilization of the national land and the promotion of public welfare (Article 1 of the Funeral Act), the act of installing an unauthorized corporate cemetery prohibited by Article 39 subparag. 1 (hereinafter “Punishment Regulations”) of the former Funeral Act refers to the act of creating a site for the installation of a tomb, and cannot be interpreted to mean that the act should be accompanied by the act of installing a tomb or completing a burial further from the creation of a tomb.

Furthermore, in light of the language and structure of the former Funeral Act, the crime of establishing an unauthorized corporate cemetery prohibited by the penal provision shall be deemed to be an immediate crime established upon the completion of “the act of establishing a site for the installation of a grave” and “the act of developing a site for the installation of a grave” and simultaneously completed at the same time.

Articles 2, 14(1)4 and (3), 31 subparag. 1, 39 subparag. 1, 40 subparag. 2, 5, and 9 of the former Act on Funeral Services, Etc. (Amended by Act No. 13108, Jan. 28, 2015); Article 1 of the Act on Funeral Services, Etc.

Supreme Court Decision 2011Do2471 Decided July 14, 2011 (Gong2011Ha, 1682)

Defendant 1 and three others

Defendants

Law Firm Barun Law LLC, Attorneys Kim Hong-do et al.

Daegu High Court Decision 2016No494 decided May 18, 2017

The judgment below is reversed, and the case is remanded to the Daegu High Court.

The grounds of appeal are examined.

1. As to the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes against Defendants 1, 2, and 3 and the violation of the Creation and Management of Forest Resources Act against Defendant 4 incorporated foundations

Examining the reasoning of the lower judgment in light of the evidence duly admitted by the lower court, the lower court is justifiable to have determined that all of the facts charged against the said Defendants were guilty, and contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the calculation of the forest damaged area and intentional act of violation of

2. As to the Defendants’ violation of the former Funeral Services, etc. Act (wholly amended by Act No. 13108, Jan. 28, 2015; hereinafter “former Funeral Services Act”).

A. The meaning of the language and text used in the law, if any, must be determined by the relevant law. However, in addition to examining the ordinary meaning of the language and text, the systematic and logical understanding of how it is used in the relevant law (see Supreme Court Decision 2013Do841, Aug. 24, 2016).

B. (1) Article 2 of the former Funeral Act defines “a cemetery” as “a cemetery in which body or remains are buried”, “retainment” as “retainment of body or remains on the ground”, and “retainment” as “retainment of body or remains on the ground.” Article 14(1)4 of the same Act provides that “a corporate cemetery shall be “a cemetery in which a large number of unspecified persons are installed within the same area,” and Article 14(3) of the same Act provides that “a person who intends to install and manage a corporate cemetery shall obtain permission from the head of a Si, etc. having jurisdiction over the relevant cemetery, as prescribed by Ordinance of the Ministry of Health and Welfare.” Article 39 subparag. 1 (hereinafter “instant penal provision”) provides that “a person who violates an order to install a cemetery, etc., or a person who violates an order to suspend the installation of a cemetery or an installation of a cemetery in violation of Article 39 subparag. 2 of the same Act shall be punished,” and Article 40 subparag. 1 (3) of the same Act provides that a person who installed a cemetery or an installation without permission.

(2) According to the above provisions of the former Funeral Act, the Funeral Act clearly separates the meaning of graveyards and graves, graves, and graves, and separates all acts of installation, grave installation, and burial in violation of the provisions of the former Funeral Act. In addition, the Funeral Act requires the permission of the mayor, etc. regarding the “establishment and management” of corporate cemeteries, while requiring the permission of the mayor, etc. regarding the “establishment and management” of corporate cemeteries, only the “establishment” of corporate cemeteries shall be punished, and the authority to take measures such as ordering the market for facilities, etc. of unauthorized corporate cemeteries, and criminal punishment against the violators of the duty to take such measures.

(3) As above, the former Funeral Act clearly separates and uses the term “graves” and “graves”, and comprehensively takes account of the following: (a) the purpose of the said Act is to prevent harm to public health and hygiene by setting the method of funeral services and the installation, creation, and management of funeral facilities (Article 1 of the Funeral Act) and to contribute to the efficient use of land and the promotion of public welfare (Article 1 of the Funeral Act), and the act of installing an unauthorized corporate cemetery, which is prohibited from the instant penal provision, means “the act of creating a site to install a tombs” and cannot be interpreted to mean that the act of completing the installation or burial of a tomb must necessarily be accompanied by the act of building a tomb

(4) Furthermore, in light of the language and structure of the former Funeral Act, the crime of establishing a corporate cemetery, prohibited by the instant penal provision, ought to be deemed an act of installing a corporate cemetery, namely, the act of creating a site to install a grave, and the so-called immediate crime that is completed simultaneously with the completion of the “an act of creating a site to install a grave” (see, e.g., Supreme Court Decision 2011Do2471, Jul. 14, 201). Therefore, the statute of limitations on this part of the facts charged ought to run from the time when the Defendants terminated the act of creating a corporate cemetery without permission. In light of the records, the fact that the creation of a corporate cemetery as stated in the facts charged was completed at the latest around January 201, and the instant indictment was filed on August 26, 2015, five years after the statute of limitations expires, and there is considerable room to deem that the statute of limitations expires.

C. Nevertheless, the lower court determined otherwise, on the premise that an act of installing an unauthorized corporate cemetery under the former Funeral Act has completed not only the creation of a cemetery site, but also the installation of a cemetery, such as a tombstone and tombstone, and that the continuous installation of a grave thereafter constitutes a single crime, including an act of creating a cemetery site. As a result, the lower court reversed the first instance judgment that rendered acquittal on the ground of the expiration of the statute of limitations on this part of the facts charged in this case, and sentenced guilty, and did not further decide on the ancillary facts added by the lower court. In so determining, the lower court erred by misapprehending the interpretation of “an act of installing an unauthorized corporate cemetery” prohibited under Articles 39 subparag. 1 and 14(3) of the former Funeral Act and by misapprehending the legal doctrine on the starting point of the statute of limitations, and failing to exhaust all necessary deliberation, which affected the conclusion of the judgment. The allegation contained in the grounds of appeal on this point is with merit.

3. Scope of reversal

Therefore, the part of the judgment of the court below which violated the former Funeral Act should be reversed. Since the remaining guilty part of the judgment of the court below is in a concurrent crime under the former part of Article 37 of the Criminal Act, the judgment of

4. Conclusion

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 Kwon Soon-il (Presiding Justice)