[1] Whether “a land between the high-water level line and the area registered in the cadastral record” under the former Public Waters Management Act constitutes a “public waters” under the said Act, even where it is actually buried and siteed (affirmative in principle)

[2] Whether the act of occupying and using public waters without permission constitutes "a continuous crime" (affirmative)

[3] The case holding that the judgment of the court below which acquitted the defendant on the ground that the period of first occupation and use of public waters should be deemed as the starting point of the statute of limitations and that the statute of limitations has already expired, on the premise that the violation of the former Public Waters Management Act due to the unauthorized occupation and use of

[1] The former Public Waters Management Act (amended by Act No. 8819 of Dec. 27, 2007) lists “seas” in Article 2 subparag. 1(a) other than state-owned waters as sea, rivers, lakes, marshes, ditches, and other waters or waterways used for public purposes, and provides that “seas” in Article 2 subparag. 2 of the same Act refers to the area registered in the cadastral record from the high-water line to the area registered in the cadastral record. Thus, even if land is actually reclaimed and siteized due to the actual reclamation of land between the high-water line and the area registered in the cadastral record, it still constitutes public waters, as long as it is not registered in the cadastral record.

[2] An act of occupying and using a beach, which is a public water surface, without permission, shall be deemed as a continuous crime in which a criminal act of occupying and using the public water surface without permission regardless of whether the external form of the public water surface has been changed.

[3] The case holding that the judgment of the court below which acquitted the defendant of the violation of the former Public Waters Management Act (amended by Act No. 8819 of Dec. 27, 2007) on the premise that the violation of the former Public Waters Management Act (amended by Act No. 8819 of Dec. 27, 2007) due to unauthorized occupation and use of public waters constitutes a situation crime or an immediate crime is erroneous in the misapprehension of legal principles,

[1] Article 2 subparag. 1(a) and subparag. 2 of the former Public Waters Management Act (amended by Act No. 8819 of Dec. 27, 2007) / [2] Article 5(1)9 of the former Public Waters Management Act (amended by Act No. 8819 of Dec. 27, 2007; see Article 8(1)11 of the current Public Waters Management and Reclamation Act; see Article 62 subparag. 2 of the current Public Waters Management and Reclamation Act) / [3] Article 5(1)9 of the former Public Waters Management Act (amended by Act No. 8819 of Dec. 27, 2007; see Article 8(1)11 of the current Public Waters Management and Reclamation Act; Article 21 subparag. 1(b) of the former Public Waters Management and Reclamation Act (amended by Act No. 8819 of Dec. 27, 2007; see Article 20 subparag. 121(3) of the current Public Waters Management and Reclamation Act)

[2] Supreme Court Decision 86Do435 delivered on October 14, 1986 (Gong1986, 3060)

Defendant

Defendant and Prosecutor

Seoul Northern District Court Decision 2008No111 Decided August 11, 2008

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

We examine the grounds of appeal.

1. As to the prosecutor's grounds of appeal

The former Public Waters Management Act (amended by Act No. 8819 of Dec. 27, 2007; hereinafter “former Public Waters Management Act”) lists “seas, rivers, lakes, ditches, and other waters or waterways used for public purposes other than state-owned purposes,” and Article 2 subparag. 1(a) of the former Public Waters Management Act provides that “seas means the area from the high-water line to the area registered in the cadastral record,” under Article 2 subparag. 2 of the former Public Waters Management Act, “seas means the area from the high-water line to the area registered in the cadastral record.” Thus, even if the high-water line subject to the application of the Public Waters Management Act and the land registered in the cadastral record was actually reclaimed and siteized, it still falls under public waters unless it is registered in the cadastral record. Accordingly, the act of occupying and using the seaside, which is a public waters, without permission, without permission, shall be deemed a continuous crime where a punishment for occupying and using such public waters without permission continues to be repeated.

Paragraph (1) of the facts charged of this case is that "the defendant buried 486 square meters of the public waters in the area of Pyeongtaek-si branch office (hereinafter omitted) around 1990 and used four containers as a warehouse until November 10, 2006." Thus, according to the above legal principles, the defendant's arbitrary illegal act continued until November 10, 2006, and the statute of limitations has not yet expired, since the prosecution of this case was instituted on November 22, 2006, for which the statute of limitations has not expired. Thus, this part of the facts charged was not yet expired.

In contrast, the court below held that the period of first occupancy and use of public waters by the defendant constitutes a state offender or an immediate crime due to unauthorized occupancy and use of public waters shall be deemed as the starting point of the statute of limitations and held that the statute of limitations has already expired, and that this part of the charges was acquitted. In so determining, the court below erred by misapprehending the legal principles on the violation of the former Public Waters Management Act due to unauthorized occupancy and use of public waters and the starting point of the statute of limitations, which affected the conclusion of the judgment. The ground of appeal pointing this out has merit

2. As to the Defendant’s ground of appeal

A. The purport of Article 254(4) of the Criminal Procedure Act stipulating that "the facts charged shall be stated clearly by specifying the time, date, place, and method of a crime." The purpose of Article 254(4) of the Criminal Procedure Act is to facilitate the efficiency and speed of trial by limiting the object of trial and to facilitate the exercise of the defendant's right to defense by specifying the scope of defense. Thus, the prosecutor, as a public prosecutor, must comprehensively consider three specific elements cited in the relevant provision, describe specific facts that meet the requirements for the constituent elements of a crime so that they can be identified from other facts (see, e.g., Supreme Court Decisions 2003Do7112, Mar. 26, 2004; 2008Do9327, Jan. 15, 2009). Although Article 254(2) of the facts charged of this case contains somewhat abstract portions of the defendant's unauthorized occupation and use, it is not difficult to limit the defendant's right to defense or its exercise.

In the same purport, the decision of the court below that rejected the defendant's assertion that this part of the facts charged was not specified is just, and there is no error of law such as misunderstanding of

B. Examining the reasoning of the judgment below in light of the records, the court below is just in finding the defendant guilty of this part of the facts charged, and there is no violation of the rules of evidence or violation of the rules of evidence.

C. However, as seen earlier, insofar as the part of the judgment of the court below pertaining to paragraph (1) of the facts charged is reversed, the part concerning paragraph (2) of the facts charged that should be sentenced to one punishment in substantive concurrent relation is also reversed.

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Sung-tae (Presiding Justice)