Defendant

Defendant

Clinical iron bars, the head of a Si/Gun/Gu shall hold a public trial.

Law Firm Sin Law Firm, Attorneys Park Byung-soo et al.

Gwangju District Court Decision 2018 Gogi49 Decided July 4, 2018

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

① Wastes referred to in Article 25(9)1 of the Wastes Control Act refer only to “waste source”. The instant stored goods are not “waste source,” but “waste disposal facilities in an appropriate place, such as the storage facilities in a permitted place of business,” and Article 25(9)1 of the Wastes Control Act provides that “it shall be stored in a permitted place of business,” not “waste storage facilities” but “reasonable storage facilities in a permitted place of business,” and the Defendant stored waste in an appropriate storage facilities located in a permitted place of business. As the Defendant stored waste in a permitted place of business, it cannot be deemed that the Defendant violated Article 25(9)1 of the Wastes Control Act; ③ the Defendant did not have intention to commit a violation of the Wastes Control Act; ④ the Defendant misleads the Defendant that the instant act was not committed, and there was a justifiable ground to believe that it did not constitute a crime, the lower court found the Defendant guilty of the facts charged. In so doing, the lower court erred by misapprehending the legal doctrine or misapprehending the legal doctrine.

B. Unreasonable sentencing

The sentencing of the court below is too inappropriate.

2. Determination

A. Summary of the facts charged in this case

The Defendant is a person who, from November 2014, operates the Nonindicted Co., Ltd., a general waste recycling company, and operates the waste disposal business in the Jeonyang-gun (name omitted).

Each waste treatment business entity shall keep wastes in an appropriate place, such as storage facilities or temporary storage facilities approved in the place of business.

Nevertheless, around April 18, 2017, the Defendant kept the intermediate processed wastes related to food without obtaining permission for waste storage facilities or approval for temporary storage facilities from the Cdong warehouse, other than the Adong waste recycling facilities, in a 950 cubic meters of the volume for which the Defendant obtained permission for waste storage facilities in the aforementioned non-indicted corporation factory.

B. The judgment of the court below

In full view of the adopted evidence, the lower court determined that Article 25(9)1 (e) of the Wastes Control Act provides that “the person who intends to obtain permission for a general waste recycling business shall keep wastes in the permitted place of business as prescribed by Ordinance of the Ministry of Environment,” and Article 30-2 subparag. 3 of the Enforcement Rule of the Wastes Control Act provides that “the waste disposal business entity shall store wastes in the permitted place of business pursuant to Article 28(4) or the permission for change pursuant to Article 29(1).” Article 25(3) of the Wastes Control Act provides that “the person who has received a notice of conformity pursuant to Article 25(2) of the same Act shall obtain permission with facilities, equipment, and technical capacity in accordance with the standards prescribed by Ordinance of the Ministry of Environment.” Thus, the lower court determined that “the person who intends to obtain permission for a general waste recycling business should submit documents to the person under Article 28(4)3 (e) of the Enforcement Rule of the Wastes Control Act on the grounds that he/she can obtain permission for the total waste recycling business.”

C. Judgment of the court below

The relevant provisions of this case are as follows.

(9) Each waste management business entity shall comply with the following matters, as prescribed by Ordinance of the Ministry of Environment:

(4) In light of the following circumstances acknowledged by the lower court by lawfully adopting and examining the evidence, (i) the Defendant is a business entity who has obtained permission for a general recycling business by using food wastes as its source of business; (ii) the storage of the instant wastes in the above location; (iii) the person who has received notice of conformity with the standards prescribed by Ordinance of the Ministry of Environment is required to obtain permission for a general recycling facility within a certain period of time; and (iv) the person who intends to obtain permission for a general recycling business under Article 28 (4) 3 (e) of the Enforcement Rule of the Wastes Control Act provides that the Defendant shall submit documents that can verify the capacity of the general recycling facility and the grounds for such permission if he/she fails to obtain permission for a general recycling facility (see, e.g., Article 28 (4) 1 of the Wastes Control Act). However, the Wastes Control Act provides that the Defendant shall not be obliged to obtain permission for a general recycling facility for more than 0 days, without providing for separate permission for the general recycling facility itself.

Nevertheless, the court below found the Defendant guilty of the facts charged of this case. The court below erred by misapprehending the legal principles, thereby affecting the conclusion of the judgment. The Defendant’s assertion pointing this out is with merit.

3. Conclusion

Thus, since the defendant's appeal is well-grounded, the judgment of the court below is reversed pursuant to Article 364 (6) of the Criminal Procedure Act without examining the remaining arguments, and it is again decided as follows.

The summary of the facts charged in this case is the same as that of the above 2-A(A). As seen in Article 2-3(c) of the above, since this constitutes a case where there is no proof of a crime, it is so decided as per Disposition by the judgment of not guilty against the defendant under the latter part of Article 3

Judges Cho Jong-ho (Presiding Judge)