Temporary change in the form and quality of farmland improvement purposes and copies of permission to divert farmland;

Article 4 (1) of the former Farmland Preservation and Utilization Act (amended by Act No. 4552 of Jun. 11, 1993) provides that a person who intends to divert farmland shall obtain permission from the Minister of Agriculture and Fisheries under the conditions as prescribed by the Presidential Decree, except in any of the following cases. Article 3-2 of the Enforcement Decree of the same Act (amended by the Presidential Decree No. 13597 of Feb. 22, 1992) provides that a person who intends to divert farmland shall temporarily extract soil and rocks or changes the form and quality of farmland during the farming season for the purpose of the farmland improvement, or temporarily changes the form and quality of farmland during the farming season for the purpose of soil, rocks, minerals, etc., even if the change of the form and quality of farmland is merely a temporary one for the farmland improvement in the farming season for which the change of the form and quality of farmland is made, it constitutes a diversion of farmland which is subject to permission under Article 4 (1) of the same Act.

Article 4 (1) of the former Farmland Preservation and Utilization Act (amended by Act No. 4552 of Jun. 11, 1993); Article 3-2 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 13597 of Feb. 22, 1992)

Defendant

Prosecutor

Attorney Bo Dong-young

Daegu District Court Decision 92No1198 delivered on November 5, 1992

The judgment below is reversed, and the case is remanded to Daegu District Court Panel Division.

We examine the prosecutor's grounds of appeal.

According to the reasoning of the judgment below, the court below found the Defendant not guilty on the ground that the Defendant’s act constituted a change in the form and quality of farmland, but on the following grounds: (a) in consideration of the following circumstances: (b) the Defendant’s act constituted a change in the form and quality of farmland; (c) in consideration of various circumstances recognized by macroficial evidence, the instant farmland, which is a stairs 2,3 meters of width, was cut down in a fluorous 2,00 meters in order to install a vinyl for mushroom cultivation, was cut down in a fluorous fluor; and (d) the alteration of the form and quality was temporarily made in a non-agricultural season; and (e) although the previous farmland was changed for the purpose of farming, the farmland was restored to agricultural production to meet the purpose of growing mushroom, which is a new growing purpose, and thus, was not subject to permission under Article 4(1) of the Act on the Maintenance and Improvement of Farmland Quality and Quality.

However, Article 4 (1) of the former Farmland Preservation and Utilization Act (amended by Act No. 4552 of Jun. 11, 1993; hereinafter referred to as the "Act") provides that a person who intends to divert farmland shall obtain permission from the Minister of Agriculture and Fisheries under the conditions as prescribed by the Presidential Decree, except in cases falling under any of the following subparagraphs. Article 3-2 of the Enforcement Decree of the same Act (amended by the Presidential Decree No. 12761 of Jul. 21, 1989 and amended by the Presidential Decree No. 13597 of Feb. 22, 1992) provides that a person who intends to divert farmland may temporarily divert farmland in a farming season for the purpose of improving farmland, or temporarily change the form and quality of farmland for the purpose of extracting soil, rocks, minerals, etc. (Article 4 (1) of the same Act) shall be subject to permission to divert farmland for a certain period after the completion of the purpose of the project (Article 4 (3) of the same Act).

Nevertheless, the court below's finding the defendant not guilty solely for the reasons stated in its holding has affected the judgment because it erred by misapprehending the legal principles on the diversion of farmland, which is subject to permission, and thus, it is reasonable to discuss the same purport of appeal.

Therefore, the judgment of the court below shall be reversed and remanded, and it is so decided as per Disposition by the assent of all participating Justices.

Justices Ansan-man (Presiding Justice)