[1] Whether a funeral hall constitutes a subsidiary use of a general hospital under the Building Act (negative)

[2] The purport of Article 16 of the Criminal Code concerning mistake of law

[3] Scope of alteration of use of a building subject to punishment under the Building Act

[4] The case holding that if a person, after renting various auxiliary facilities necessary for funeral ceremony established in a hospital, used it as a funeral hall and operated it as an actual funeral hall, it shall be deemed that the purpose of the building should be changed by operating the funeral hall, which is a legally limited purpose

[1] According to Articles 3 and 32 of the Medical Service Act, and Article 28-2 [Attachment 2] of the Enforcement Decree of the Medical Service Act, a general hospital is obligated to install a corpse. According to Article 2(1) of the Enforcement Decree of the Building Act, the use of a facility which is obligated to install as an ancillary facility of the main purpose of the building constitutes a "subsidiary use" of the main purpose of the building. Thus, the use of a corpse room, which is a mandatory installation of a general hospital, constitutes a subsidiary use of the general hospital. However, since the former Building Act (amended by Act No. 6655 of Feb. 4, 2002), Article 3-4 [Attachment 1] of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 17926 of Feb. 24, 2003] Article 2-4 of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 17926 of Feb. 24, 2003, the term "building" refers to a general hospital, hospital, etc.

[2] Article 16 of the Criminal Code provides that "the act of a misunderstanding that one's act does not constitute a crime under the law shall not be punishable only when there is a justifiable ground for misunderstanding." It does not mean a simple legal site, but it is generally a crime, but it is a mistake that it does not constitute a crime that is permitted by the law in case of his own special circumstances, but it does not punish a misunderstanding if there is a justifiable ground for misunderstanding.

[3] The alteration of the purpose of use to be regarded as a construction of a building under the Building Act includes not only the alteration itself from the purpose stipulated in the subparagraphs of the attached Table 1 of the Enforcement Decree of the Building Act to another purpose, but also the use of a building that has been altered to another purpose, and the alteration does not necessarily necessarily require a tangible alteration.

[4] The case holding that if a person rents various auxiliary facilities necessary for funeral ceremony established in a hospital and uses it as a funeral hall and actually conducts the business, it shall be deemed that the purpose of the building should be changed by operating the funeral hall, which is a legally limited purpose.

[1] Articles 2 and 14 of the former Building Act (amended by Act No. 6655 of Feb. 4, 2002), Articles 2(1)14 and 3-4 of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 17926 of Feb. 24, 2003), Article 11 of the Constitution / [2] Article 16 of the Criminal Act / [3] Article 14 of the Building Act, Article 3-4 [Attachment Table 1] of the Enforcement Decree of the Building Act / [4] Articles 14 and 78 of the Building Act, Article 3-4 of the Enforcement Decree of the Building Act [Attachment Table 1]

[2] Supreme Court Decision 2003Do451 Decided April 11, 2003 (Gong2003Sang, 1224), Supreme Court Decision 2001Do1429 Decided January 15, 2004 (Gong2004Sang, 368), Supreme Court Decision 2003Do6282 Decided February 12, 2004 (Gong2004Sang, 503), Supreme Court Decision 94Do2148 Decided December 22, 1995 (Gong196Sang, 618), Supreme Court Decision 2001Do3990 Decided September 25, 2001 (Gong201Ha, 2397)

Defendant 1 and one other

Defendants

Attorney Choi Young-young

Jeonju District Court Decision 2005No158 Decided June 10, 2005

All appeals are dismissed.

1. According to Articles 3 and 32 of the Medical Service Act, and Article 28-2 [Attachment 2] of the Enforcement Decree of the Medical Service Act, the court below held that the installation of a corpse is mandatory for general hospitals. According to Article 2(1) of the Enforcement Decree of the Building Act, the use of a facility which is obligated to install as incidental facilities of the main purpose of the building constitutes "subsidiary use" of the main purpose of the building. Thus, the use of a corpse, which is a mandatory installation of a general hospital, constitutes subsidiary use of the general hospital. However, in light of the former Building Act (amended by Act No. 6655 of Feb. 4, 2002), Article 3-4 of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 17926 of Feb. 24, 2003) that the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 17926 of Feb. 24, 2003, the term "building's use of a general hospital and its accessory facilities, etc.

2. Article 16 of the Criminal Act provides, "The act of misunderstanding that one's act does not constitute a crime under the Acts and subordinate statutes shall not be punishable only when there is a justifiable ground for misunderstanding." It does not mean a simple legal site, but it is generally a crime, but it is erroneous in misunderstanding that one's act does not constitute a crime under the Acts and subordinate statutes and does not constitute a crime if there is a justifiable ground for misunderstanding of misunderstanding (see, e.g., Supreme Court Decisions 2003Do451, Apr. 11, 2003; 2003Do6282, Feb. 12, 2004).

The court below held that the defendants 2 obtained a building permit for medical facilities at the time of the new construction of a hospital, obtained approval for the use for the part of the first floor as medical facilities (a hospital) and Class II neighborhood living facilities (cafeteria omitted), and that the defendant 1 leased the facility of the first floor funeral hall underground from the defendant 2 to "(the name of a hospital omitted)," "(the name of a hospital)," "type of business," "type of business, food, general ceremony, etc." cannot be viewed as a justifiable ground to believe that the defendants' act of operating a funeral hall, which is a legally limited purpose, is not a crime. In light of the above legal principles, the court below's determination is proper, and there is no error of law by misapprehending the legal principles as to mistake under Article 16 of the Criminal Act.

3. The alteration of the purpose of use to be regarded as a construction of a building under the Building Act includes not only the alteration itself from the purpose stipulated in the subparagraphs of each subparagraph of the attached Table 1 of the Enforcement Decree of the Building Act, but also the use of a building that has been altered to another purpose, and the alteration does not necessarily necessarily require a tangible alteration (see Supreme Court Decisions 94Do2148 delivered on December 22, 1995, 2001Do390 delivered on September 25, 2001, etc.).

The court below affirmed the judgment of the first instance that found Defendant 1 guilty of the facts charged in collusion with Defendant 2 and changed the use of the building for a legally limited purpose, on the ground that Defendant 2 constructed various auxiliary facilities necessary for funeral ceremony on the first floor below (the name of hospital omitted), and Defendant 1 entered into a lease contract for the relevant facilities on February 3, 2003, which was before the completion of the hospital, and actually operated it as a funeral hall. Thus, Defendant 1 should be deemed to have changed the use of the building by operating the funeral hall, which is a legally limited purpose. In light of the above legal principles, the court below's decision is proper, and there is no error of misapprehending the facts against the rules of evidence or misapprehending the legal principles as to co-principal.

4. Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)