All appeals by the Defendants are dismissed.

Summary of Grounds for Appeal

D Forest land 3,091m2 (hereinafter “instant land”) was leased by J for the purpose of farming, and was actually used as a dry field.

The Defendants did not intend to violate the Management of Mountainous Districts Act because they knew the actual use of the instant land as “former”.

Although it was true that landscaping stone was generated in the course of organizing the instant land, the Defendants merely transferred approximately 20 meters to F’s soil by exchanging earth and rocks, such as landscaping stone, as stated in paragraph (2) of the facts charged, with F’s soil. Therefore, the intent of theft is not recognized.

Therefore, the court below erred by misunderstanding facts or by misapprehending legal principles, which affected the conclusion of the judgment.

The lower court’s sentence of unreasonable sentencing (the Defendant A’s fine of KRW 2.5 million, Defendant B’s fine of KRW 1.5 million) is too unreasonable.

Judgment

As to the assertion of mistake of facts and misapprehension of legal principles, mountainous district means the land "land where standing timber and bamboo grow collectively" or "land where standing timber and bamboo grow collectively has been temporarily lost," excluding farmland, grassland, housing land, roads, and other land prescribed by Presidential Decree (Article 2 subparagraph 1 of the Management of Mountainous Districts Act). Whether a mountainous district is a mountainous district prescribed by the Management of Mountainous Districts Act shall be determined depending on the actual phenomenon of the relevant land regardless of its land category entered in the public record, and even if a state of loss as a mountainous district has lost its phenomenon as a temporary state and it is possible to reinstate it

(See Supreme Court Decisions 88Do668 delivered on December 13, 198, and 2007Do10118 delivered on July 10, 2008, etc.). According to the evidence duly adopted and duly examined by the lower court and the trial court, the land category of the instant land falls under “forest” but the J applied for a loan of State property by stating its use as “agricultural company,” and part of the instant land.