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The defendant's appeal is dismissed.
Reasons
1. Summary of grounds for appeal;
A. In this case of mistake of facts, the Defendant’s expansion and use without any separate permission for mountainous district conversion constitutes farmland that has been developed and managed by the Defendant from around 1970 to the area where the Defendant developed and managed as an orchard, and does not constitute mountainous district subject to the application of the Mountainous Districts Management Act.
Nevertheless, the judgment of the court below which found the Defendant guilty of the facts charged of this case is erroneous and adversely affected by the judgment.
B. Even if the defendant is found guilty, in light of the background and degree of the crime, etc., the punishment imposed by the court below (one million won of fine) is too unreasonable.
2. Determination
A. (1) The defendant's assertion of mistake of facts is that since around 1970, the defendant planted the fruit trees of this case and used them as orchard. The orchard constitutes farmland subject to the Farmland Act and thus does not constitute mountainous district.
(2) (A) In addition to the result of the on-site inspection of the evidence duly admitted and investigated by the lower court, the following circumstances are recognized.
(B) According to Article 2 subparagraph 1 of the Management of Mountainous Districts Act, a mountainous district shall refer to land, etc. where standing timber or bamboo is collectively growing or is used for collective growth or land, etc. where standing timber or bamboo is temporarily lost, and farmland, grassland, etc. shall be excluded from a mountainous district.
Determination of whether a mountainous district is a mountainous district shall be made according to the actual phenomenon of the land concerned, regardless of the land category in the public record, and even if the land has been lost as a mountainous district or grassland, if the lost state is temporary and it is possible to restore it to original state, such land constitutes mountainous district or grassland
(see, e.g., Supreme Court Decision 88Do668, Dec. 13, 1988). Meanwhile, farmland is farmland.