2015No666 Violation of the Cultural Heritage Protection Act

A,

Defendant

Written evidence satisfy, Lathere, and Public Trial

Attorney B

Chuncheon District Court Decision 2015Gohap168 Decided June 25, 2015

January 19, 2017

The judgment of the court below is reversed.

The defendant shall be innocent.

1. Summary of grounds for appeal;

A. misunderstanding of facts and misapprehension of legal principles

Samsan is a cultural property designated in Gangwon-do, and the defendant reconstruction the cultural property after the legal branch of C was transferred to another, and the area of the temple has not increased due to the defendant's restoration work. Therefore, the construction of the defendant's legal branch does not constitute the alteration of the current state of the cultural property protection zone.

B. Unreasonable sentencing

The punishment of the court below (2 million won of fine) is too unreasonable.

2. Ex officio determination

Before the judgment on the grounds for appeal is made ex officio, the prosecutor shall change the public prosecution room of this case from the trial court as follows; the applicable provisions of Article 35 (1) 1 of the Protection of Cultural Properties Act shall be changed to "Article 35 (1) 2 of the Protection of Cultural Properties Act"; "Article 74 (2) of the Protection of Cultural Properties Act" shall be added to "Article 74 (2) of the Protection of Cultural Properties Act"; and the judgment of the court shall no longer be maintained due to the change in the subject of the judgment by this court.

【Revised Public Prosecution】

No one shall engage in any act that may affect the preservation of City/Do-designated cultural heritage within a historic and cultural environment preservation area without obtaining permission from the competent administrative agency.

Nevertheless, from May 28, 2012 to March 3, 2012, the defendant constructed a building of the same temple and moved the location of the original building in the Chuncheon City/Do, which is located within the preservation area of the historic and cultural environment related to the protection area of the Chuncheon City/Do-designated cultural environment.

Accordingly, the defendant did an act that could affect the preservation of City/Do-designated cultural environment within the preservation area of the historical and cultural environment without obtaining permission from the competent administrative agency.

3. Determination of the changed facts charged

A. Defendant and defense counsel's assertion

Since construction by the defendant C does not violate Article 13(4) of the Cultural Heritage Protection Act and the public notice of the permissible change of the current state around the designated cultural heritage of Gangwon-do (No. 2012-363 of the Gangwon-do Public notice; hereinafter referred to as "the permissible time limit for the present case"), it does not constitute an act that is likely to affect the preservation of designated cultural heritage. Even if the defendant's act is contrary to the public notice of the permissible limit for the present case, it cannot be viewed as an act that is likely to affect the preservation of designated cultural heritage in light of the fact that construction permission

B. Coordination of relevant statutes and issues

Articles 74(2) and 35(1)2 of the former Cultural Heritage Protection Act (amended by Act No. 12352, Jan. 28, 2014; hereinafter the same) provide that “any person who intends to engage in any activity prescribed by Ordinance of the Ministry of Culture, Sports and Tourism, which is likely to affect the preservation of City/Do-designated cultural heritage, shall obtain permission from the competent Mayor/Do Governor.” Article 15(2)1(a) of the former Enforcement Rule of the Cultural Heritage Protection Act (amended by Ordinance of the Ministry of Culture, Sports and Tourism No. 200, Jan. 29, 2015; hereinafter the same shall apply) provides that “the construction or extension of a building or facility that is likely to affect the preservation of designated cultural heritage,” and Article 99(1)1(1) of the former Cultural Heritage Protection Act provides that any person who is likely to affect the preservation of designated cultural heritage, shall be punished by imprisonment with labor for not more than five years or by a fine not exceeding five million won.

Therefore, the issue of this case is whether the construction of the temple's legal building and the construction of new construction of the warehouse building at C located within the historic and cultural environment preservation area of Samsan, Gangwon-do-do-designated cultural heritage falls under "the construction of and extension to constructed water or facilities that are likely to impair the landscape of Samsan, which is a designated cultural heritage" (On the other hand, the defendant and the defense counsel should determine whether the defendant's act is likely to affect the preservation of designated cultural heritage based on Article 13(4) of the former Cultural Heritage Protection Act and the notice of this case's permissible standards under Article 13(2), (4), and (5)3 of the former Cultural Heritage Protection Act. However, in light of the forms, contents, and purport of the provisions of Article 13(4) of the same Act and the notice of this case's permissible standards established with the delegation thereof is merely that the administrative agency responsible for the authorization and permission of construction works should consider the permission of the construction engineer within the preservation area, and there is no possibility of criminal punishment under Article 9(1)4) of the former Cultural Heritage Protection Act.

C. Determination

Article 15(1)3 (a) of the former Enforcement Rule of the Cultural Heritage Protection Act provides that an act of new construction, extension, remodeling, removal, or alteration of the purpose of use of all kinds of facilities, such as buildings, within designated cultural heritage, protective facilities, or protection zones shall be subject to permission from the competent authority by deeming the act of alteration of the current state without considering whether such act is likely to impair the landscape of designated cultural heritage or to affect the preservation thereof, while Article 15(2)1 (a) of the same Act provides that only acts that are likely to impair the landscape of the designated cultural heritage among the acts of installing or expanding buildings or facilities within the preservation area of the cultural environment of designated cultural heritage shall be subject to permission from the competent authority. The purport of the provision is to relax the regulation on construction activities within the preservation area of cultural heritage, protective facilities, or protection zones, rather than construction activities within the designated cultural heritage, and shall be interpreted strictly because it affects the establishment of crimes where the relevant construction activities are not likely to impair the landscape

However, the circumstances revealed by the evidence duly adopted and examined by the court below and the court below, i.e., the part where the defendant constructed a new building C and carried out construction of a warehouse building, i.e., the part where the defendant had been located in the existing building C, E, Chuncheon E, where the building was located, such as the law party, the company company, and the company, and the company, etc. (ii) around 2010, when the existing law party was destroyed by fire, C, and decided to remove the remainder of the building near it and re-construction the law party. Although the size of the building under the new law of the defendant was larger than that of the existing building under the existing law, it is difficult to conclude that there is a concern over impeding the landscape of the building under the existing law. ③ Since the warehouse that the defendant moved to a new building exists before the previous law becomes a fire, there is no possibility that the defendant's act of moving the building could affect the landscape of the building site, and there is no possibility that the defendant's act of preserving the above designated cultural heritage is difficult.

4. Conclusion

Therefore, the judgment of the court below is reversed under Article 364 (2) of the Criminal Procedure Act without examining the defendant's decision on the main sentence of unfair sentencing, and it is again decided as follows after oral argument.

[Grounds for multi-use Judgment]

The summary of the facts charged of this case is as stated in Paragraph (2) [Revised facts charged]. As seen in Paragraph (3), the facts charged of this case constitutes a case where there is no proof of facts constituting a crime. Thus, the judgment of not guilty under the latter part of Article 325 of the Criminal Procedure Act was rendered as per Disposition.

Masung (Presiding Judge)

Sheed materials

Ise Jina

1) Article 18-3 of the Gangwon-do Ordinance on the Protection of Cultural Heritage (Ordinance No. 3338, May 29, 2009) enforced at the time of the instant case is a case by the head of the Si/Gun.

The extent and scope of the area to be examined whether the implementation of the construction project is likely to affect the preservation of cultural heritage before granting authorization or permission for the construction project;

Article 74 (2) and Article 35 (1) 2 of the former Cultural Heritage Protection Act only provides for matters to be considered, and the Mayor/Do Governor shall do so pursuant to Article 74 (2) and Article

of the person who intends to conduct an act that is likely to affect the preservation of designated cultural heritage subject to permission shall be subject to separate regulations;

There is no provision.

2) Noise and vibration that may affect the preservation of designated cultural heritage under Article 15(2)1(b) of the former Enforcement Rule of the Cultural Heritage Protection Act by the Defendant’s act

There are questions as to whether it falls under ‘the act of emitting chemical substances, dust, heat, etc.' but it is not ‘the act of generating chemical substances, dust, heat, etc.

According to the facts charged, it is evident that a prosecution was instituted to the effect that it falls under item (a) of the same subparagraph.

3) Article 13(2) of the former Cultural Heritage Protection Act provides that an administrative agency responsible for the authorization, permission, etc. of construction work shall designate an outer boundary (a designated protection area) of designated cultural heritage

In cases of construction works to be implemented in an area outside a protection zone, the historic and cultural environment determined by a Mayor/Do Governor.

With respect to construction works implemented in the preservation area, the relevant construction works shall be implemented before granting authorization, permission, etc. for the construction works.

shall be examined as to whether an act is likely to affect the preservation of the property, and shall be considered as such, and paragraphs 4 and 5 of the same Article.

According to the study, the Administrator of the Cultural Heritage Administration shall specify acts that may affect the preservation of designated cultural heritage in a historic and cultural environment preservation area.

The standards shall be determined and publicly announced, and with respect to construction works implemented within the scope of the standards for such acts in the area where the said standards are publicly announced.

The review under paragraph 2 is required to be omitted.