(영문) 인천지방법원 2015.6.18.선고 2014고단5647 판결

When the defendant was elected as a reinforcement Gun, he prepared a new project site for the construction project site of the branch office of the strengthening Gun Office (hereinafter referred to as "the separate project site of this case") within the 163 site of the strengthening Gun Office in Incheon, and tried to build a separate branch office of the strengthening Gun Office.

In the vicinity of the Reinforcement Military Office, reinforcement acid constitutes State-designated cultural heritage under the Cultural Heritage Protection Act, and the site for the separate project of this case is about 210 meters away from the above reinforcement acid.

It constitutes a historic and cultural environment preservation area under the Family Protection Act. On the other hand, the defendant tried to construct a separate building on a size of 4 stories above ground and 1 stories below ground (three meters below cutting and building height of 21.6 meters) in the separate project area of this case.

However, in order to change the current state, such as setting up a building with a height of at least 17 meters in height and at least 2 meters underground in a historic and cultural environment preservation area, permission from the Cultural Heritage Administration was required. Accordingly, the defendant requested the Cultural Heritage Administration to permit the alteration of the current state, etc. on September 2012, and obtained conditional permission from the Cultural Re-Agency on September 14, 2012 after discovering and investigating the site of the instant separate project from the Cultural Heritage Re-Agency on condition that the Cultural Heritage Committee be reviewed.

According to the above conditional permission, the Defendant requested the Korea Cultural Heritage Research Institute to find a historic site for the instant separate project site. (Re-inspection) The Korea Cultural Heritage Research Institute conducted the first investigation from February 26, 2013 to March 7, 2013. In the process, the instant separate project site was confirmed as a building site during the period of consideration, and the second additional excavation investigation was conducted until May 31, 2013, because the instant separate project site was confirmed as a building site during the period of consideration, such as the discovery of relics in the instant separate project site. Even after conducting the second excavation, it was necessary to conduct an additional three-month detailed investigation because it was impossible to discover relics, etc., and the cost was KRW 150 million.

On June 3, 2013, the Defendant: (a) sent to the Cultural Heritage Administration a letter that “the submission of an opinion on the result of the investigation of excavation of cultural heritage in the site of the instant separate project site by the strengthened Military Office” that he/she would only install a parking lot on the site of the instant separate project site; and (b) revised the plan to newly construct a separate building that was modified at a distance of 16.9 meters from the site of the instant separate project site to the south of about 30 meters from the historic and cultural environment preservation area to reduce the size of the building by reducing the size of the separate building in order to obtain the permission for the alteration of the current state in the historical and cultural environment at the site of the instant separate project site.

On June 19, 2013, the Defendant, from the Administrator of the Cultural Heritage Administration around June 19, 2013, discovered a buried cultural heritage asset, such as a stone marbing of 1'a 'A' in the instant villa project site, a building site at the time of consideration, and a stone marbing in the era of consideration. In order to implement a development project in the instant villa site, he/she conducted an additional investigation with a separate permission from the Cultural Heritage Administration of the Republic of Korea, and received a notice of "measures to preserve cultural heritage asset following the completion of the inspection of buried cultural heritage asset at the vicinity of the instant villa site."

Nevertheless, around June 25, 2013, the Defendant, while carrying out a new construction project of the reinforced military office that was modified as above, changed the phenomenon of the area where buried cultural heritage was buried, such as where cultural heritage was discovered, and where historical value was generated, performing civil engineering works without permission of the Cultural Heritage Administration on the 97 square meters of the separate project site of this case, which constitutes the area where buried cultural heritage remains, and where concrete was removed therefrom.

2. Determination

A. Whether the separate project site of this case constitutes an area of buried cultural heritage

(1) Prosecutor's assertion

The Prosecutor brought a public prosecution for the instant case by asserting that the instant separate project site does not fall under Article 3 subparag. 1 through 6 of the Enforcement Decree of the Act on the Protection and Inspection of Buried Cultural Heritage (hereinafter “Enforcement Decree”), but Article 3 subparag. 7 of the Enforcement Decree of the Burial Culture Re-Act, and Article 13(1) subparag. 3 of the Act on the Protection and Investigation of Buried Cultural Heritage (hereinafter “the Act”).

(2) The basic principle of statutory interpretation

Article 75 of the Constitution provides that "The President may issue Presidential Decrees with regard to the matters delegated specifically by law." "The Constitution provides the constitutional basis for delegated legislation, and the delegation at that time provides the specific scope of the delegation." In this case, "prediciability" means that any person should be able to predict the outline of the contents to be provided for by Presidential Decree, etc. from the relevant law to the relevant law, if the basic matters of the contents and scope already provided for by Presidential Decree are specifically provided in the Act.

In addition, the elements of a crime subject to criminal punishment should be clearly defined by law within the formal meaning (the principle of clarity), and if the provisions on the elements of a crime are too abstract or ambiguous and its contents and scope are excessively broad or unclear, it is possible to exercise the state punishment power, thereby guaranteeing individual freedom and rights.

(3) Determination

According to the law, the type of cultural heritage or geologic value located on the land, underground, underwater, underwater, structure, etc. (e.g., natural digging, chemicaling, etc.) is of great geological value (Article 2 of the Act), and the buried cultural heritage(Article 2 of the Act), .

"An area of existence" means an area (Article 4 of the Act) in which buried cultural heritage is recognized as existing, as prescribed by Presidential Decree.

In other words, according to the language and text of Article 4 of the Act, the specific basic contents of the contents and scope to be prescribed by the Presidential Decree with respect to the area of buried cultural properties are "the existence of the buried cultural properties" and "the recognition thereof", and Article 3 (1) 1 through 6 of the Enforcement Decree of the Cultural Heritage Act provide detailed requirements for the existence and recognition thereof (for example, the indication of existence in the cultural relics distribution map, indication of existence in the ground surface inspection report, measures to preserve cultural properties after the excavation, the procedure for discovery and confirmation, and the inspection and recognition by the Administrator of Cultural Heritage Administration for the cultural heritage protection area, the cultural properties designated by the Administrator of the Cultural Heritage Administration for the State, etc.).

Such duty to preserve the area of buried cultural heritage in its original form is imposed with the duty to excavate as prescribed by law (Article 4 of the Act), and the act of changing the current state is punished for the area where buried cultural heritage is already verified as the area of buried cultural heritage or being excavated (Article 31(2) of the Act).

As such, the Act prohibits excavation in the area of buried cultural heritage in principle (the main sentence of Article 11 of the Act), and exceptionally permits excavation by application and permission by a private person (the proviso of Article 11(1) and Article 12 of the Act) or ex officio excavation by the State (Article 13 of the Act). Thus, the language of each subparagraph of Article 13(1) of the Act, which provides for the subject of excavation ex officio by the State, is difficult to be seen as the detailed contents of the requirements of "reexistence of burial culture" and "recognition" under Article 4 of the Act. Article 13 of the Act, among the areas of buried cultural heritage specified by the Decree, some (the area with high historical value, such as the area where buried cultural heritage is distributed, the area where buried cultural heritage is abandoned, and the area where ancient cultural heritage is excavated ex officio regardless of the owner or manager of the relevant area) appears to be part of the area subject to excavation, which limits the existence of the State's ex officio.

However, unlike Article 3 (1) through (6) of the Enforcement Decree, Article 3 (7) of the Act does not stipulate the detailed requirements for ‘existence of buried cultural heritage' and ‘recognition of buried cultural heritage' and Article 13 (1) of the Act and prescribes "area of high historical value such as high-level (Seoul), 2. Area where underwater cultural heritage is distributed, 3. Waste death, etc.," and "area of buried cultural heritage."

When interpreting the language and text of Article 3(1)7 of the Enforcement Decree as it is alleged by the prosecutor, it is not doubtful that the whole area of high historical value, such as racing, grant, official residence, and closure of buried cultural heritage, is an area where buried cultural heritage is buried (i.e., even in case where buried cultural heritage does not exist, if it does not exist). In other words, the specific contents concerning ‘re-existence of buried cultural heritage' and ‘recognition', which are delegated by the Enforcement Decree of the Act, are irrelevant to or unspecific to the requirements for the area of buried cultural heritage without the prescribed Enforcement Decree (Article 13(1)7 of the Act), which brought about the law as it is, and ultimately, it is not doubtful that the so-called ‘clarological error' of each subparagraph of the Article 13(1) of the Enforcement Decree, which is contrary to the legislative limit of delegation, is inconsistent with the principle of no punishment without the law.

In conclusion, it is difficult to interpret Article 3 subparag. 7 of the Enforcement Decree as it is the language and content of the inspection as it is, and it is difficult to interpret strictly as a constitutional provision (Article 3 subparag. 7 of the Enforcement Decree as an independent requirement to fill the gap of the protection of buried cultural heritage as a result of the specification under Article 3 subparag. 1 through 6 of the Enforcement Decree, even if it is considered as a constitutional provision, it is difficult to readily conclude that the present state alteration in the facts charged in the instant case falls under any of Article 3 subparag. 1 through 6 of the Enforcement Decree, or the present case where there is no proof that there is no historical value of the present site as a site of buried cultural heritage as an area of buried cultural heritage under Article 3 subparag. 7 of the Enforcement Decree as an area of buried cultural heritage under Article 3(2) of the Enforcement Decree, the submission of evidence by the prosecutor alone constitutes a site of buried cultural heritage as an area with high historical value, such as a site of waste.).

B. Whether the defendant's intention is recognized (assumptive judgment)

According to the evidence submitted by the prosecutor, it is recognized that the reinforcement military office has invaded 97m2 out of the instant villa site in the course of constructing a new building by moving its location from the instant villa site to the south by 30 meters.

Under the assumption that the separate business site of this case constitutes the area of buried cultural properties, the key issue of the facts of the instant public lawsuit, is as to whether the Defendant, who was the head of the Gun, was reported in advance by the head of the Gun, at the time when the site location was changed as stated in the facts charged, and whether there was the explicit or incomplete intention of the Defendant in the facts charged of this case.

In light of the following circumstances acknowledged by the record, ① the senior official of the Reinforcement Military Office proposed the idea of design change and transfer as mentioned above, even if the design change and transfer were made, it is difficult to view that the Defendant had submitted the new site of this case to the investigation agency without any reasonable evidence and proof that it did not go against the requirements for permission for change of cultural heritage if it was cut below 2 meters underground, and thus, it would not go against the law because it did not go against the requirements for permission for change of cultural heritage. It is clearly known that the investigation agency of this case can only take part of the investigation agency of this case, ② the contents of the testimony at the investigation agency and court of the witness Ma-jin, ③ the contents of the testimony at the witness Go-jin Military Investigation Agency (21 pages of the examination report, etc.), and the contents of the testimony at the investigation agency of the witness Go-jin Military Office (21th prosecutor's statement report), and the part of the testimony at the investigation agency (2nd prosecutor's statement report), and it is difficult to view that the Defendant had submitted any other new or new evidence.

C. Conclusion

Therefore, there is no proof of the facts charged in this case, so the defendant is acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act, and the summary of the judgment in this case is announced in accordance with Article 58 (2) of the Criminal Act. It is so decided as per Disposition.

Judges

Judges Park Sang-ok

Note tin

1) “The bottom and bottom” is currently amended as “the condition of the amendment to the region (Presidential Decree No. 25916, December 30, 2014, amended as of December 30, 2014).

Site of separate sheet

Related Acts and subordinate statutes

A person shall be appointed.

참조조문

-고도(古都)보존에관한특별법

-대한민국헌법

-대한민국헌법 제75조

-매장문화재 보호 및 조사에 관한 법률 제13조 제1항 제3호

-매장문화재 보호 및 조사에 관한 법률 시행령 제3조 제1호

-문화재보호법

-형법 제58조 제2항

-형사소송법 제325조

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