[1] Whether the act of changing the use of a warehouse to a house within a natural park zone shall obtain permission from the park management authority under Article 23 (1) 1 of the former Natural Parks Act (affirmative)

[2] The purpose of Article 16 of the Criminal Code concerning mistake of law and the standard for determining whether there is a justifiable reason

[1] Article 23 (1) of the former Natural Parks Act (amended by Act No. 7456 of March 31, 2005) / [2] Article 16 of the Criminal Act

[1] Supreme Court Decision 86Do440 delivered on June 10, 1986 (Gong1986, 900), Supreme Court Decision 99Mo174 delivered on January 4, 2001 (Gong2001Sang, 577), Supreme Court Decision 2004Do8311 Delivered on March 10, 2005 (Gong2005Sang, 616) / [2] Supreme Court Decision 99Do3539 Delivered on October 12, 199, Supreme Court Decision 2005Do3717 Delivered on March 24, 2006 (Gong206Sang, 766)

Defendant

Defendant

Attorney Park Jae-soo

Ulsan District Court Decision 2006No442 decided Oct. 27, 2006

The appeal is dismissed.

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1 and 3

Permission for acts under the subparagraphs of Article 23 (1) of the former Natural Parks Act (amended by Act No. 7456 of Mar. 31, 2005; hereinafter "the former Act") shall be obtained separately for each act, unless there are special circumstances. Even if construction acts are not required to obtain permission or report under the Building Act, construction acts in a natural park area shall be deemed construction acts in light of the legislative purpose of the Natural Parks Act that aim to preserve natural ecosystem, nature, cultural landscape, etc. and promote sustainable use by considering the special nature of the natural park, unless they fall under minor matters prescribed in the proviso of Article 23 (1) 1 of the former Act, permission from the park management agency prescribed in Article 23 (1) 1 of the former Act shall be obtained (see Supreme Court Decision 2004Do8311, Mar. 10, 2005, etc.). The act of changing the purpose of use of a warehouse to housing in the natural park area shall be deemed to be cases where it might hinder the conservation and management of the natural park.

According to the records, the court below, based on its adopted evidence, acknowledged the following facts: the non-indicted's act of changing the use of the existing agricultural and fishery warehouse on the land of this case, which was located in the natural environment district under the former Act, was permitted on April 1, 2002 to divert farmland from the head of the upper Myeon, which was located in the natural environment district under the former Act, and was permitted on November 26, 2002 by the competent park management agency for new construction of two agricultural and fishery warehouses on the land of this case, and sold the land of this case to the defendant; however, the defendant arbitrarily changed the use of the existing agricultural and fishery warehouse on the land of this case without obtaining a separate permission from the competent park management agency, and newly constructed each new building site and spaws, etc. as stated in its reasoning; the defendant's act of changing the use of the land of this case falls under Article 83 subparagraph 1 and Article 23 (1) 10 of the former Act; the defendant's new construction falls under Article 82 subparagraph 2 of the former Act and Article 23 (1)1)1).

2. Regarding ground of appeal No. 2

Since there is no change in the indictment at the first instance court and the original trial, the argument in the grounds of appeal related to changes in indictment is without merit.

3. As to the fourth ground for appeal

Article 16 of the Criminal Act provides that an act of misunderstanding that one's act does not constitute a crime under the Acts and subordinate statutes shall not be punishable only when the misunderstanding is based on a justifiable ground. However, it is generally accepted that his act is not a crime that is permitted under the Acts and subordinate statutes in his own special circumstances, but it does not constitute a crime if there are justifiable grounds for misunderstanding. Whether there exists a justifiable reason shall be determined depending on whether the act of misunderstanding could not be aware of the illegality of his act as a result of failure to perform his/her duty even though it was possible to recognize the illegality of his/her act if he/she had made efforts to avoid it with his/her intellectual ability because there was a chance that he/she would have been aware of the illegality of his/her act (see Supreme Court Decisions 9Do3539, Oct. 12, 199; 2005Do3717, Mar. 24, 2006, etc.).

According to the records, the court below acknowledged facts as stated in its holding, and determined that the defendant's act does not constitute a case where there is a reasonable ground to believe that his act does not constitute a crime under the law at the time of the defendant's act as stated in the above Paragraph (1). There is no error in the misapprehension of legal principles as to the interpretation of Article 16 of the Criminal Code, as alleged in the

4. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)