Defendant

Defendant

Kim Jong-l

Japan Law Firm, Attorneys Yoon-ho et al.

Jeju District Court Decision 2004Ra1543 Delivered on June 10, 2005

The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

A. misunderstanding of facts or misunderstanding of legal principles

Since the Defendant purchased farmland as stated in the judgment of the court below to use it for agricultural management and actually uses it for agricultural management, the Defendant does not obtain the qualification certificate for acquisition of farmland for the purpose of owning farmland by means of fraud or other unlawful methods, by violating the provisions of restriction on ownership that no person is using or using farmland for his own agricultural management

B. Unreasonable sentencing

The sentence imposed by the court below is too heavy.

2. Determination

A. As to the assertion of mistake of facts or misapprehension of legal principles

(1) Relevant provisions

【farmland】

Article 2 (Definitions)

2. The term “farmer” means an individual who is engaged in the agriculture and is prescribed by the Presidential Decree;

4. The term “agricultural management” refers to the operation of agriculture by a farmer or an agricultural corporation on his own account and responsibility;

5. The term “self-arable” means that a farmer engages in the cultivation of the crops or perennial plants on his own farmland at all times, or cultivates or cultivates not less than a half of the farming works with his own labor, or that an agricultural corporate body cultivates the crops or cultivates perennial plants on its own farmland;

6. The term "entrusted management" means an agricultural management conducted by a farmland owner under the agreement to pay a certain remuneration to another person, and by entrusting the whole or part of farming works;

Article 6 (Restriction on Ownership of Farmland) (1) No person other than those who use or use farmland for his own agricultural management shall own the farmland.

Article 8 (Issuance of Certification of Farmland Acquisition)

(1) A person who intends to acquire farmland shall obtain a qualification certificate for acquisition of farmland from the head of a Si/Gun/Gu having jurisdiction over the location of the farmland, or Eup/Myeon

(2) A person who intends to obtain a qualification certificate for acquisition of farmland under paragraph (1) shall prepare an agricultural management plan including the following matters and apply for the issuance thereof to the head of a Si/Gu/Eup/Myeon having jurisdiction over the location of farmland:

1. The area of the farmland to be acquired;

2. Measures for securing labor force, agricultural machinery, and equipment suitable for the agricultural management of the farmland to be acquired;

3. The current status of the use of the farmland owned (limited to those who own the farmland).

Article 9 (Entrusted Management of Farmland) Any owner of farmland shall not entrust the management of his own farmland to another person except in the following cases:

1. Where conscripted or called under the Military Service Act;

2. Where he is traveling abroad for not less than three months.

3. Where an agricultural corporation is liquidated;

4. Where it is impossible to do so by disease, school attendance, taking public office by election, or due to other causes as determined by the Presidential Decree;

5. Where he entrusts and manages the farmland utilization promotion project pursuant to the execution plan as prescribed in Article 16;

6. Where a farmer entrusts part of farming works where his/her own labor power falls short;

[Enforcement Decree of the Farmland Act]

Article 3 (Scope of Farmers) The term “persons as prescribed by the Presidential Decree” in subparagraph 2 of Article 2 of the Act means persons falling under any of the following subparagraphs:

1. A person who cultivates or cultivates agricultural crops or perennial plants in the farmland of at least 1,00 square meters, or is engaged in agriculture for at least 90 days a year;

2. A person who cultivates or cultivates agricultural crops or perennial plants by installing a fixed greenhouse, mushroom cultivation shed, greenhouse, or other facilities necessary for agricultural production as prescribed by the Ordinance of the Ministry of Agriculture and Forestry, which is not less than 30 square meters in farmland.

3. A person who raises two livestock for consideration, ten livestock for middle grade, 100 livestock for cattle, 100 livestock for middle grade, 10,000 or more for middle grade, or engages in livestock farming for at least 120 days for a year;

4. A person whose annual sales of agricultural products through agricultural management are at least one million won;

Article 11 (Entrusted Management of Farmland) (1) The term “other causes as determined by the Presidential Decree” in subparagraph 4 of Article 9 of the Act means any of the following causes:

1. Where he/she needs medical treatment for at least three months due to an injury;

2. Where he is confined in a prison, detention house, or protective custody center pursuant to the Criminal Administration Act and the Social Protection Act;

(2) Determination

In full view of the above-mentioned provisions, farmland should be used for agricultural management in order to own the farmland, and the method of agricultural management has a consignment management method other than a person who ordinarily engages in agriculture or puts his own labor force to another person. However, except in exceptional cases, it is not allowed to entrust the entire management of farmland without investing his labor force, and in the case of the defendant, there is no exception for the entire operation of farmland without investing his labor force in accordance with the above-mentioned provisions.

According to the evidence as stated in the judgment below and the witness testimony at the trial of the court below, in order to obtain the qualification certificate for acquisition of farmland necessary for the purchase of the farmland of this case, the defendant submitted to the competent government office an application stating "self labor force" as to each farmland of this case acquired in the name of the defendant's wife, and each farmland of the No. 1 of the crime log No. 2 acquired in the name of the defendant, "self labor force" in the column for securing labor force, and with respect to each farmland of the No. 3 of the crime log No. 3 acquired in the name of the defendant, the defendant, non-indicted 2, and the defendant's child, as "self labor force" in the column for securing labor force, and with respect to each farmland of this case acquired in the No. 3 of the crime log No. 4, the defendant's dwelling is located in Incheon and Seoul, and if the defendant's dwelling is located in the farmland of this case, it is impossible for the non-indicted 2 to directly purchase the farmland of this case for the purpose of purchasing the farmland of this case.

The Defendant alleged that he was unaware of all procedures for the purchase of farmland in this case to a certified judicial scrivener, and thus did not know of such illegality. However, insofar as the Defendant violated the Farmland Act, the Defendant cannot be exempted from punishment on the ground that he did not know of specific procedures for the acquisition of farmland in this case.

B. As to the assertion of unfair sentencing

In light of the fact that the Defendant did not have any criminal record other than a fine, and the Defendant did not have any criminal record in the farmland in this case by consignment management, it is recognized that the amount of the farmland acquired in violation of the provisions of the Farmland Act is large, and in light of the following conditions, such as the Defendant’s age, occupation, career, character and conduct, family environment, the means and method of the instant crime, motive and consequence, etc., the sentence imposed by the lower court on the Defendant is reasonable.

3. Conclusion

Therefore, the defendant's appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act because the defendant's appeal is groundless. It is so decided as per Disposition.

Judge Lee Chang-il (Presiding Judge)