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The prosecutor's appeal is dismissed.
Reasons
1. Even if the land in this case prior to changing the form and quality of the Defendant’s land was lost as a mountainous district, it constitutes a mountainous district under the Mountainous Districts Management Act because it is possible to restore the lost land temporarily as a mountainous district.
Therefore, although the defendant's act of changing the form and quality of the land of this case without permission from the Minister of the Korea Forest Service constitutes a violation of the Mountainous Districts Management Act, the judgment of the court below acquitted
2. Determination
A. Whether a forest is a forest under Article 2 (1) of the Forestry Act shall be determined according to the actual state of the pertinent land regardless of its land category on the public register. Thus, even if the land category on the land cadastre is a forest, even if it is classified as a forest, the state of loss of the phenomenon as a forest cannot be deemed a temporary state, and if it cannot be deemed that it is a rock located in a forest in light of surrounding surrounding phenomena, it shall not be deemed a forest under the Forestry Act.
(See Supreme Court Decision 2006Do4360 Decided September 14, 2006, and Supreme Court Decision 88Do668 Decided December 13, 198, etc.) B.
The lower court determined that the evidence submitted by the prosecution alone was insufficient to recognize that the state prior to changing the form and quality of the instant land constitutes a mountainous district under the Mountainous Districts Management Act, and rather, according to the legal statement of E or each aerial photography submitted by the Defendant, the Defendant was already using the instant land as a rice field or dry field before creating a parking lot, and the surrounding land was also used as a rice field or dry field. The lower court determined that the instant land had been lost its phenomenon as a forest before changing the Defendant’s form and quality, and that it was difficult to view that the said land was temporarily lost its phenomenon as a forest before changing the Defendant’s form and quality.
(c).