The meaning of “a person who raises livestock using the waste-generating facility” as prescribed by Article 50 subparag. 3 of the former Act on the Management and Use of Livestock Excreta, and whether the person who raises livestock using the waste-generating facility subject to reporting in accordance with the amendment of the Act and subordinate statutes was included in the scope of “a person who raises livestock using the waste-generating facility” (negative)

Article 12(1) of the Constitution of the Republic of Korea; Article 1(1) of the Criminal Act; Article 50 Subparag. 3 (see current Article 50 Subparag. 4) of the former Act on the Management and Use of Livestock Excreta (Amended by Act No. 10973, Jul. 28, 201); Article 11(3) and Article 50 Subparag. 3 (see current Article 50 Subparag. 4) of the former Act on the Management and Use of Livestock Excreta (Amended by Act No. 12516, Mar. 24, 2014)

[1] Supreme Court Decision 2009Do7777 Decided July 14, 2011 (Gong2011Ha, 1682) Supreme Court Decision 2009Do7776 Decided July 28, 2011

Defendant

Prosecutor

Attorney Lee Chang-hoon

Daejeon District Court Decision 2014No456 decided September 25, 2014

The appeal is dismissed.

The grounds of appeal are examined.

1. The interpretation of penal provisions shall be strict, and the interpretation of penal provisions in the direction unfavorable to the defendant is not permitted because it is against the principle of no punishment without the law to excessively expand or analogically interpret the meaning of penal provisions to the disadvantage of the defendant (see Supreme Court en banc Decision 2001Do5410, Feb. 8, 2002, etc.

2. Article 50 Subparag. 3 of the former Act on the Management and Use of Livestock Excreta (hereinafter “Act”) provides that “a person who installs a waste-generating facility or raises livestock using such waste-generating facility without filing a report in violation of Article 11(3) or by filing a report by fraudulent or other illegal means,” and Article 11(3) of the Act provides that “a person who intends to install a waste-generating facility exceeding the scale prescribed by Presidential Decree, among discharge facilities not subject to permission, shall report to the head of a Si/Gun/Gu, as prescribed by Ordinance of the Ministry of Environment.”

The term “discharge facilities” in the instant legal provision is interpreted as “discharge facilities installed without filing a report in violation of Article 11(3) of the Act.” In this context, if a person who installed the discharge facilities does not have the person subject to reporting under Article 11(3) of the Act at the time of the installation of the discharge facilities, even if he/she later fell under the subject of reporting pursuant to the amendment of the Act and subordinate statutes, it cannot be deemed as “a person who intends to install the discharge facilities,” who is subject to reporting under the said provision (see Supreme Court Decision 2011Do2471, Jul. 14, 2011, etc.).

Meanwhile, the instant legal provision provides that only those who installed emission facilities shall be punished before being amended by Act No. 10973, Jul. 28, 2011; however, the purport of the provision that those who raise livestock by “using emission facilities” is to punish those who raise livestock by the said amendment is to promote the balance of punishment by punishing not only the installer but also the user in cases where the “installer” and the “user” of emission facilities installed without reporting are different.

In light of the language and text of the legal provision of this case, the scope of persons subject to reporting, the purport of the amendment of the Act, and the principle of no punishment without law, etc., the legal provision of this case is limited to “a person who raises livestock using an emission facility without reporting it by a person subject to reporting pursuant to Article 11(3) of the Act.” Thus, even if a person was not a facility subject to reporting at the time of installation of the emission facility, if the facility becomes subject to reporting pursuant to the amendment of the Act, it does not include a person who raises livestock using the emission facility.

In the same purport, the court below was just in maintaining the first instance court which acquitted the defendant on the facts charged of this case by determining that the defendant cannot be punished under the legal provision of this case, and there was no error in the misapprehension of legal principles as to the objects of punishment of this case.

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

Justices Kim Shin (Presiding Justice)