[1] Whether the transferee of a waste-generating facility under the former Act on the Management and Use of Livestock Excreta succeeds to the status of the facility operator by taking over the possession and management of the waste-generating facility from the previous installer (affirmative); and whether the status of the facility operator succeeded to if the transferee still occupies and manages the waste-generating facility without restoring the original state to the original state, even if the act of transfer, such as a sales contract, was cancelled after the cancellation

[2] In a case where the Defendant was prosecuted for violating the former Act on the Management and Use of Livestock Excreta by taking over a farm in succession to public waters by acquiring livestock excreta from the facility operator Gap who obtained permission for the installation of a discharge facility on the farm which is a livestock raising facility, through Eul, and practically managing the farm through the purchase and sale contract with Eul, the case holding that the Defendant, upon taking over the farm upon the purchase and sale contract with Eul, succeeded to the status of the facility operator pursuant to Article 14 of the said Act at the time of the violation, was in possession and management of the farm at the time of the violation, and thus, even if the purchase and sale contract for the farm was revoked prior to the cancellation, he is in the status

[1] The former Act on the Management and Use of Livestock Excreta (amended by Act No. 12516, Mar. 24, 2014; hereinafter “former Livestock Excreta Act”) provides that a person who intends to install a waste-generating facility shall obtain permission from the head of a Si/Gun/Gu or file a report thereon to the head of a Si/Gun/Gu according to the scale of the waste-generating facility (Article 11(1) and (3) and Article 11 (hereinafter “facility operator”) transfers the waste-generating facility and disposal facility (hereinafter “waste-generating facility”).

Unlike the current Act on the Management and Use of Livestock Excreta (Article 14(3)), a transferee of discharging facilities, etc. succeeds to the status of the facility operator by taking possession and management of discharging facilities, etc. from the previous installer by taking over possession and management of discharging facilities, etc., and continues to possess and manage discharging facilities, etc. without restoring the status of the facility operator even if the act of the cause of transfer, such as a sales contract, was cancelled, if he/she still occupies and manages discharging facilities, etc. without reporting to the head of the Si/Gun/Gu.

[2] In a case where the Defendant was prosecuted for violation of the former Act on the Management and Use of Livestock Excreta (amended by Act No. 12516, Mar. 24, 2014; hereinafter “former Livestock Excreta Act”), by acquiring a farm in succession to the status of the facility operator pursuant to Article 14 of the former Livestock Excreta Act by acquiring the farm through a sales contract with Eul and practically managing the farm through Eul from the facility operator Gap, and causing the livestock excreta to be discharged into public waters due to occupational negligence not properly managing the farm, the case affirming the judgment below holding that the Defendant, as a facility operator, was subject to Article 50 subparagraph 5 of the former Livestock Excreta Act, on the ground that the Defendant occupied and managed the farm even at the time of the violation after succeeding to the status of the facility operator pursuant to Article 14 of the former Livestock Excreta Act, even if the sales contract with respect to the farm was revoked prior to the cancellation of the sales contract with respect to the farm.

[1] Articles 11(1) and (3), 14, and 50 subparag. 5 (see current Article 50 subparag. 6) of the former Act on the Management and Use of Livestock Excreta (Amended by Act No. 12516, Mar. 24, 2014); Article 14(3) of the Act on the Management and Use of Livestock Excreta / [2] Articles 10 (see current Article 10(1)), 11(1), 14, and 50 subparag. 5 (see current Article 50 subparag. 6) of the former Act on the Management and Use of Livestock Excreta

Defendant 1 and one other

Defendants

Jeonju District Court Decision 2015No154, 1269 decided November 4, 2015

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the violation of the Act on the Management and Use of Livestock Excreta by Defendant 1 (the act of discharging livestock excreta into public waters)

A. The former Act on the Management and Use of Livestock Excreta (amended by Act No. 12516, Mar. 24, 2014; hereinafter “former Livestock Excreta Act”) provides that a person who intends to install a waste-generating facility shall obtain permission from the head of the competent Si/Gun/Gu or report to the head of the competent Si/Gun/Gu according to the scale of the waste-generating facility (Article 11(1) and (3) and Article 11 (hereinafter “facility operator”) transfers the waste-generating facility and disposal facility (hereinafter “waste-generating facility”) to a person who has obtained permission, etc. for installation of the waste-generating facility or filed a report, etc. pursuant to Article 11 (1) and (1).

Unlike the current Act on the Management and Use of Livestock Excreta (Article 14(3)), in light of the above provision of the former Livestock Excreta Act, which stipulates that the transfer of waste-generating facilities, etc. can be succeeded to the status of the facility operator without reporting to the head of the Si/Gun/Gu, and the physical nature of the installation permission for waste-generating facilities, etc., the transferee of the waste-generating facilities, etc. succeeds to the status of the facility operator by taking over the possession and management of the waste-generating facilities, etc. from the previous installer, even if the act of causing transfer, such as a sales contract, was cancelled, if he still occupies and manages the waste-generating facilities, etc. without restoring the status

B. For the reasons indicated in its reasoning, the lower court rejected Defendant 1’s assertion on the grounds that (1) Defendant 1 succeeded to the status of the facility operator of the instant farm pursuant to Article 14 of the former Livestock Excreta Act, on November 28, 2013, on the ground that (2) Defendant 1 acquired the instant farm in sequence through Nonindicted 2, the facility operator, who was the facility operator who obtained the permission for the installation of discharge facilities, and actually managed the instant farm on November 28, 2013, on the ground that he succeeded to the status of the facility operator pursuant to Article 50 subparag. 5 of the former Livestock Excreta Act, on the ground that (2) Defendant 1 was the facility operator subject to the application of Article 50 subparag. 5 of the former Livestock Excreta Act.

C. Of the grounds of appeal, the argument that the lower court’s determination on fact-finding is merely an error of the lower court’s determination on the selection and probative value of evidence belonging to the free trial of the fact-finding court.

Examining the reasoning of the lower judgment in light of the evidence duly admitted and the legal doctrine as seen earlier, Defendant 1 succeeded to the status of the facility operator by acquiring the instant farm based on the sales contract with Nonindicted Party 2 pursuant to Article 14 of the former Livestock Excreta Act; and even around November 28, 2013, Defendant 1 occupied and managed the instant farm. Thus, even if the sales contract on the instant farm was rescinded prior to the cancellation, it does not affect the conclusion of the judgment by deeming that Defendant 1 was in the status of the facility operator as a principal agent under Article 50 subparag. 5 of the former Livestock Excreta Act at the time of November 28, 2013. Ultimately, the lower court did not err by misapprehending the legal doctrine regarding the succession to the status of the facility operator under Article 14 of the former Livestock Excreta Act, or by exceeding the bounds of the principle of free evaluation of evidence, contrary to what is alleged in the grounds of appeal.

2. As to the Defendants’ assertion of unfair sentencing

According to Article 383 subparagraph 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 amount of punishment is unreasonable is not a legitimate

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 Kim Jae-hyung (Presiding Justice)