[1] The scope of administrative property under the State Property Act

[2] In a case where an aggregate extraction business entity uses a ditch, farm road, and river site for the storage or transportation of aggregate, the case reversing the judgment of the court below which acquitted him of facts constituting a violation of the State Property Act on the ground that the ditch, farm road, and river site fall under miscellaneous property, not administrative property or conservation property under the State Property Act, although it can be deemed that the above river site was an administrative property by the actual use of the farm road and ditch for public purposes

[3] In a case where the appellate court rendered a judgment of conviction on the part of the facts charged in a substantive concurrent relationship and rendered a judgment of innocence on the part of the facts charged, and the appellate court did not render a judgment of innocence on the part of the verdict of acquittal on the grounds of which the prosecutor appealed on the whole of the verdict of innocence, the subject of the judgment of the appellate court is the case where only the prosecutor appealed

[1] A State-owned river site is a so-called natural public object with an entity that can be offered for public use as it is natural condition, and it cannot be deemed as a miscellaneous property as a matter of course unless it is abolished pursuant to the State Property Act and subordinate statutes, even if it is in a state of not being offered for its original purpose, even if there is no separate act of public use, and it is not offered for its original purpose. The so-called artificial public property, such as a farm road or ditch, is an administrative property if it is designated by the Act and subordinate statutes or is determined to be used for public

[2] In a case where an aggregate extraction business entity uses a ditch, farm road, and river site for the storage or transportation of aggregate, the case reversing the judgment below which acquitted the aggregate extraction business entity of facts constituting a violation of the State Property Act on the ground that the ditch, farm road, and river site fall under miscellaneous property, not administrative property or conservation property under the State Property Act, although it can be deemed that the above farm road and ditch were administrative property by actually being used for public purposes

[3] The guilty part of the facts charged is also subject to the judgment of the court of final appeal even if the prosecutor filed a final appeal against the guilty part, and the guilty part is also subject to the judgment of the court of final appeal, and the conviction part of the facts charged is guilty, and the guilty part is not guilty, and the part of the facts charged is not guilty, and the part of the conviction part is not subject to the judgment of the court of final appeal which did not make a separate judgment in the main text. In the case where the prosecutor filed a final appeal against the whole part of the acquittal part, the prosecutor appealed the entire part of the verdict of the court of final appeal, which did not mean that the prosecutor filed a final appeal against the prosecutor and the defendant. However, the prosecutor appealed the part of the acquittal part which is in a mutually competitive relationship with the other part, and thus the guilty part is subject to the judgment of the court of final appeal. Accordingly, the guilty part is also subject to the judgment of the court of final

[1] Article 4 (2) of the State Property Act / [2] Articles 4 (2), 5 (1), and 58 of the State Property Act / [3] Articles 37 and 40 of the Criminal Act, Article 342 of the Criminal Procedure Act

[1] Supreme Court Decision 92Nu18528 delivered on April 13, 1993 (Gong1993Sang, 1410), Supreme Court Decision 96Da10737 delivered on August 22, 1997 (Gong1997Ha, 2783) / [3] Supreme Court en banc Decision 80Do384 delivered on December 9, 1980 (Gong1981, 13473), Supreme Court Decision 94Do3250 Delivered on June 13, 1995 (Gong195Ha, 2428), Supreme Court Decision 2004Do7488 delivered on January 27, 2005 (Gong205Sang, 369)

Defendant

Prosecutor

Jeonju District Court Decision 2005No921 Decided September 16, 2005

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

1. The lower court determined that the Defendant’s use and profit-making of state property from January 9, 2005 to April 11, 2005 without justifiable grounds by installing containers, etc. on the river site 2,544 square meters in the above Gocheon-ri (number 1 omitted), and that the Defendant’s use of aggregate from 189 square meters in ancient-do (number 1 omitted), agricultural roads located in the same Ri (number 2 omitted), 419 square meters in agricultural roads located in the same Ri (number 2 omitted), and without justifiable grounds, it constitutes an administrative property or a farmland parcel number of 5,000 square meters in each of the above charges (number 3 omitted), and that there is no evidence to acknowledge that the above charges constituted an administrative property or a farmland parcel number of 1,544 square meters in each of the above charges on the ground that there is no administrative property or a farmland parcel number of 5,000 square meters in each of the above charges (number 4 omitted), and there is no reason to recognize it as an administrative property or an agricultural preservation property.

2. However, a State-owned river site is a so-called natural public object, which has an entity that can be offered for public use as it is natural condition, and it cannot be deemed as a miscellaneous property as a matter of course unless it is abolished pursuant to the State Property Act and subordinate statutes, even if it is in a state of not being offered for its original purpose, even if it is not an act of opening a separate public use, and then becomes an administrative property. The so-called artificial public property such as agriculture, street, ditch, etc. is designated by the Act and subordinate statutes, or is determined to be used for public use as an administrative disposition, or is actually used as administrative property (see Supreme Court Decisions 92Nu18528, Apr. 13, 1993; 96Da10737, Aug. 22, 1997, etc.).

According to the records, the Jung-Eup market manages each river site above, which is the state owned by the defendant, such as imposing indemnity on the non-indicted 1 company and notifying the performance of restoration to the original state (the statement of the police by the non-indicted 2), the above Gocheon-ri (number 2 omitted), and the ditches (number 1 omitted) are installed by the Korea Agricultural and Rural Infrastructure Corporation and actually used as farming roads and farming roads, but the defendant, even though he was installed on the above farming roads, he deducted 15 concrete waterway pipes installed on the above farming roads from one side, and used them for the entry of the aggregate transport vehicle for the purpose of using them as the entrance of the aggregate, or for the aggregate volume (the copy of the aggregate extraction site inspection report, the police statement by the non-indicted 3, the police protocol by the co-defendant of the court of first instance, and the police protocol by the co-defendant of the first instance court). In light of the above facts in light of the aforementioned legal principles, each river site is a natural good, and it can be deemed that each administrative property was actually used as the above farming and public ditches.

Nevertheless, the court below did not disregard the evidence that corresponds to the facts charged without any reasonable reason and found the defendant not guilty of this part of the facts charged for the reasons as stated in its reasoning. Thus, the court below erred in the misapprehension of legal principles as to administrative property under the State Property Act and erroneous recognition of facts contrary to the rules of evidence, which affected the conclusion of the judgment. The prosecutor's ground of appeal

3. Scope of reversal

The judgment of the appellate court which did not make a separate verdict as to the part of innocence in the whole of the two crimes in a commercial concurrent relationship is not the same as the prosecutor and the defendant are not the same, but the part of the conviction is subject to the judgment of the appellate court (see Supreme Court en banc Decision 80Do384, Dec. 9, 1980; 80Do384, Dec. 9, 1980; 80Do384, Dec. 9; 2005; 200Do454, Jun. 25, 2005; 2008Do44, Jun. 30, 2005; 2005Do477, Jun. 28, 2005).

According to the records, the defendant's act of collecting aggregate in violation of the conditions of permission or without permission is against each Aggregate Extraction Act; the act of piling aggregate in violation of the same Ri (number 6 omitted); 57 square meters; 1,94 square meters (number 7 omitted); and the act of using aggregate collected on the 660 square meters of the same Ri (number 7 omitted); and the act of using the ditches and farming roads in violation of the Farmland Act; and the act of using the ditches and farming roads; and (2) above; and (3) the act of using each river site was prosecuted as an ordinary concurrent crime of violation of the State Property Act and the act of violating the River Act, on the grounds that there is no evidence that each river site constitutes administrative property and preservation property; and the court below found the defendant guilty of the act of using ditches and farming roads in violation of the River Act; and found the remainder of each act to be not guilty on the grounds that there is a concurrent relation between the violation of the Aggregate Extraction Act and the entire act of violating the River Act; and found the defendant not guilty on each of the part of the same Act.

Therefore, the part which was found guilty in the court below also depends on the type of crime and sentencing to be punished according to the principle of not guilty and not guilty of the part which are in the ordinary competition relationship with the court below. Thus, as long as the part of the court below's acquittal is reversed in all of the judgment of the court below in this case, the part of the conviction in the ordinary competition relation and the part of the conviction in the substantive competition relation should be reversed together.

4. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Ill-sook (Presiding Justice)