In a case where a person who obtained permission for development activities under the National Land Planning and Utilization Act dies, whether a successor succeeds to his/her status (affirmative in principle), and whether a successor to such status becomes a principal offender of an order to reinstate upon the expiration of the period of permission for development activities under Article 133(1)5-2 of the same Act (affirmative)

In full view of the fact that Article 135(2) of the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”) provides that a successor to a person who has ownership of and other rights to the land or buildings related to the act shall lose its effect on the disposition, procedure therefor, and other acts pursuant to the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”), and that a permission for development activities pursuant to the National Land Planning and Utilization Act has the nature of a substitute permission, barring any special circumstance, a successor succeeds to the status of a person who has obtained permission for development activities, and the successor to such status is a criminal subject to an order for restoration following the expiration of the period of permission for development activities as provided by Article 133(1)5-2 of the National Land

Articles 56 and 133(1)5 of the former National Land Planning and Utilization Act (Amended by Act No. 10599, Apr. 14, 201); Articles 133(1)5 and 5-2, 135(2), and 142 of the National Land Planning and Utilization Act

[Plaintiff-Appellant-Appellee] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant-appellee)

Defendant 1 and one other

Defendants and Prosecutor

Attorney Seo Li-ri

Suwon District Court Decision 2013No471 decided August 21, 2013

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the Defendants’ grounds of appeal

Examining the reasoning of the lower judgment in light of the evidence duly admitted by the lower court, the lower court was justifiable to have found Defendant 1 guilty of forging private documents and uttering of falsified private documents among the facts charged against Defendant 2 and the facts charged against Defendant 2 on the grounds indicated in its reasoning. In so doing, 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 in violation of logical and empirical rules, or by misapprehending the legal doctrine on the grounds for excluding

Meanwhile, according to Article 383 subparag. 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years has been imposed, an appeal on the grounds of unfair sentencing is allowed. Thus, in this case where a more minor sentence has been imposed on the Defendants, the argument that the sentencing of the sentence is unreasonable

2. As to the Prosecutor’s ground of appeal on Defendant 2

A. Summary of the facts charged

(1) The summary of this part of the facts charged is as follows: “Around December 1996, the Defendant obtained permission to engage in development activities from Osan-si as to the size of 991 square meters owned by Osan-si (hereinafter omitted), which is the name of Nonindicted Party 1 (the “Defendant’s death on February 2, 2010), but the permission to engage in development activities was revoked on or around October 201, 201 because it did not undergo a completion inspection by May 31, 2005. The Defendant received a written notification from Osan-si to restore the said land to its original state on or around February 16, 2012, but did not comply with it without justifiable grounds.”

(2) As to the Defendant’s act, a prosecutor obtained permission for development activities or permission for alteration pursuant to Article 56 of the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”) and did not complete development activities during the permitted project period, and was charged by applying Article 142 and Article 133(1)5-2 of the National Land Planning and Utilization Act, deeming that the Defendant’s act constitutes a person who violated a disposition or an order to take measures pursuant to Article 142 of the National Land Planning and Utilization Act.

B. The judgment of the court below

The lower court reversed the first instance judgment convicting the Defendant on the violation of the National Land Planning Act on the ground that there is no proof of criminal facts, and acquitted the Defendant on the ground that there is insufficient evidence to acknowledge that the Defendant received permission for development activities in the name of father Nonindicted 1, his father, and that the Defendant cannot be deemed a person who

C. Judgment of the Supreme Court

(1) In full view of the fact that Article 135(2) of the National Land Planning and Utilization Act provides that a successor to a person who has the ownership of or other rights to the land or a building related to the act shall lose its effect on the disposition, procedure therefor, and other acts pursuant to the National Land Planning and Utilization Act, and that a permission for development activities pursuant to the National Land Planning and Utilization Act has the nature of an physical permission, barring any special circumstance, a successor succeeds to the status of a person who has obtained permission for development activities, and the successor to such status shall be the principal offender of an order for restoration following the expiration of the period for permission for development activities pursuant to Article 133(1)5-2 of the National Land Planning

According to the reasoning of the judgment below and the evidence duly admitted by the court below and the records, ① Nonindicted 2, at the time, who was a lessee with respect to 91 square meters of forest 5,231 square meters among the forest 5,231 square meters owned by the Defendant’s father around September 25, 1996 (hereinafter omitted), obtained permission for development from the Osan market as the permission period until May 31, 2005; ② Nonindicted 1 obtained permission for development from the Osan market as the title holder from May 25, 2004 to Nonindicted 2, the original permission period of development permission expires on May 31, 2005; ③ Nonindicted 1 died on October 23, 2010, including the above (hereinafter omitted); and ④ Nonindicted 2, including the Defendant’s heir, did not obtain permission for development activities from the Osan market to the original order for restoration; and ④ Defendant 2, including the instant order for restoration from the original order for restoration to the original state on the ground that it was not revoked.

Examining these facts in light of the legal principles as seen earlier, the Defendant succeeded to the status of Nonindicted 1’s heir upon the death of Nonindicted 1, who received permission for development activities under the National Land Planning and Utilization Act, and the Defendant who succeeded to such status, is an offender for restoration following the expiration of the period of permission for development activities under Article 133(1)5-2 of the National Land Planning and Utilization Act.

Nevertheless, the reasoning of the lower judgment that acquitted the Defendant solely on the ground that the Defendant cannot be deemed as having obtained permission for development activities is erroneous by misapprehending the legal doctrine on the succession of the status of a person who obtained permission for development activities under the National Land Planning Act.

(2) However, Article 133(1)5-2 of the National Land Planning and Utilization Act, which is the premise of a punishment provision for the Defendant, was newly established under the National Land Planning and Utilization Act as amended by Act No. 10599 on April 14, 201 and enforced on April 15, 2012, which is the premise of a punishment provision for the Defendant, and as seen earlier, was not yet implemented on February 2, 2012, the instant order for restitution cannot be deemed as a disposition or measure under Article 133(1)5-2 of the National Land Planning and Utilization Act. Accordingly, in this case where a prosecution was instituted on the premise that the Defendant was subject to a disposition or order for measures under Article 133(1)5-2 of the National Land Planning and Utilization Act, the Defendant cannot be punished under Article 142 of the National Land Planning and Utilization Act by deeming the Defendant as a person who violated the disposition or order for measures under the said provision.

Ultimately, the conclusion of the lower court that acquitted the Defendant on this part of the facts charged is just and acceptable, and the allegation in the grounds of appeal disputing this is without merit.

3. Conclusion

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

Justices Yang Chang-soo (Presiding Justice)