[1] In a case where a general hospital alters and uses a body room, which is a medical installation, for the purpose of a funeral hall by adding “all kinds of auxiliary facilities necessary for the funeral ceremony,” whether such funeral hall constitutes a “subsidiary use” of a general hospital under the Building Act (negative)

[2] The case affirming the judgment of the court below that the extension is subject to restriction on its use as an accessory building to a funeral hall under the National Land Planning and Utilization Act on the ground that the extension is extended to a restaurant, which is an accessory facility for the operation of a funeral hall, and used only for such purpose

[3] The case affirming the judgment of the court below that even if the defendant et al. had a consultation with the local government when expanding a restaurant at a funeral hall or had an inquiry in relation to the Ministry of Construction and Transportation, it cannot be deemed that there is a "justifiable cause" in the mistake of the law under Article 16 of the Criminal Code

[1] According to Articles 3 and 32 of the former Medical Service Act (amended by Act No. 8007 of Sep. 27, 2006), and Article 28-2 [Attachment 2] of the former Enforcement Rule of the Medical Service Act (amended by Ordinance of the Ministry of Health, Welfare and Family Affairs No. 11 of Apr. 11, 2008), a general hospital is obligated to install a corpse. According to Article 2(1) of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 19466 of May 8, 2006), the use of a facility obligated to install as an ancillary facility of the main purpose of the building, which is essential for the function of the general hospital’s main purpose, falls under the category of a general hospital’s accessory facility, and thus, the purpose of the installation of a funeral hall and its auxiliary facility of the former Building Act (amended by Ordinance of the Ministry of Health, Welfare and Family Affairs of Apr. 11, 2006).

[2] The case affirming the judgment of the court below which held that since the funeral hall at issue is not a "subsidiary use" of a general hospital because it has various auxiliary facilities necessary for funeral ceremony in addition to the body room, which is a medical installation of the general hospital, and it does not constitute a "subsidiary use" of the general hospital since most of such subsidiary facilities are located within the commercial area, such as the body room, wedding room, and decentralization among various subsidiary facilities of the above funeral hall, but the extended part 1,081 square meters is located within the Class 2 general residential area, and in light of the course and purpose of the extension, location, structure, use, etc. of the extension, it is an accessory building of the funeral hall which is an incidental facility for the operation of the funeral hall and used only for such purpose, it shall be subject to the restriction on construction of the funeral hall which is the main building, and therefore, construction of a restaurant corresponding to an accessory building of the funeral hall within Class 2 general residential area, the alteration of the purpose of use of which is restricted, or alteration of the above purpose is in violation of Article 76 of the National Land Planning and Utilization Act.

[3] The case affirming the judgment of the court below holding that since the defendant or Chungcheongnam-do had gone through the process of consultation on the extension of the restaurant area of a funeral hall and its extension and questioning related to the Ministry of Construction and Transportation, the consultation with the Hongsung-gun was presumed to be an affiliated building of the hospital, not a funeral hall, and that the extension section is an affiliated building of the hospital, not a funeral hall, and that the same applies to the entry or approval for use in the building ledger. In the case of a general hospital, the inquiry letter of the Ministry of Construction and Transportation does not intend to generally allow the installation or operation of a funeral hall in general hospital, but it can be deemed that the installation of a facility for funeral in the case of the death of a patient hospitalized in the general hospital, merely because such consultation or inquiry was conducted, it cannot be said that the defendant mispers the defendant about the establishment and operation of the funeral hall of this case, or there was a justifiable ground for such mismisunderstanding

[1] Articles 3 and 32 of the former Medical Service Act (amended by Act No. 8007 of Sep. 27, 2006), Article 28-2 of the former Enforcement Rule of the Medical Service Act (amended by Ordinance of the Ministry of Health, Welfare and Family Affairs No. 11 of Apr. 11, 2008), Article 2 of the former Building Act (amended by Act No. 8014 of Sep. 27, 2006), Articles 2 (1) and 3-4 of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 19466 of May 8, 2006), Article 3, Article 32 (see current Article 36 of the Medical Service Act), Article 20 of the former Enforcement Decree of the Building Act (amended by Act No. 8007 of Sep. 27, 2006), Article 60 of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 1960-14 of Apr. 127, 208)

[3] Supreme Court Decision 2005Do3717 decided Mar. 24, 2006 (Gong2006Sang, 766) Supreme Court Decision 2006Do7968 decided Oct. 26, 2007

Defendant

Defendant

Law Firm Daeil, Attorney in original form

Daejeon District Court Decision 2006No2071 Decided February 9, 2007

The appeal is dismissed.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

A. According to Articles 3 and 32 of the former Medical Service Act (amended by Act No. 8007 of Sep. 27, 2006), and Article 28-2 [Attachment 2] of the former Enforcement Rule of the Medical Service Act (amended by Ordinance of the Ministry of Government Administration and Home Affairs No. 11 of Apr. 11, 2008), a general hospital is obligated to install a corpse. According to Article 2(1) of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 19466 of May 8, 2006; hereinafter the same), the purpose of the installation of a facility obligated to install as an ancillary facility of the main purpose of the building, which is essential for the function of the general hospital, falls under the category of “a subsidiary use”, and thus, the purpose of the installation of a corpse, which is a mandatory installation of the general hospital, falls under the category of an appurtenant facility of the general hospital, and the purpose of its installation and use of the facility is clearly different from that of the former Act (amended by Ordinance No. 14).

Furthermore, Articles 36 and 76(1) of the former National Land Planning and Utilization Act (amended by Act No. 8014, Sep. 27, 2006; hereinafter the same) and Article 71(1)4 [Attachment Table 5] 2(d) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 19400, Mar. 23, 2006; hereinafter the same shall apply), and Article 71(2) of the same Act include only a hospital among medical facilities specified in [Attachment Table 1] of the former Enforcement Decree of the Building Act. Under Article 71(1) of the former Enforcement Decree of the National Land Planning and Utilization Act, the isolation hospital and funeral hall are limited to a medical facility that cannot be constructed. In applying restrictions on construction under Article 71(1) of the former Enforcement Decree of the National Land Planning and Utilization Act, the restriction on construction of the main building shall be applied to an annexed building.

B. According to its adopted evidence, since the funeral hall of the Red Medical Center of this case is equipped with wedding rooms, wedding rooms, and restaurants, which are various auxiliary facilities necessary for funeral ceremony, added to the body room, which is the obligatory installation of the general hospital, and therefore, it cannot be deemed that the funeral hall of this case constitutes subsidiary use of the general hospital. Among the various auxiliary facilities of the above funeral hall, most of the body rooms, wedding rooms, and branch houses are located within the commercial area. However, the extended part 1,081 square meters is located within the Class 2 general residential area, and the part of this case is located within the Class 1,081 square meters in light of the purpose, location, structure, and use of the extension, and is an accessory building of the funeral hall of the general residential area, which is an incidental facility for the operation of the funeral hall, and its purpose is to comply with the restriction on construction of the funeral hall, which is its main building. Thus, in light of the legal principles as to the construction of the funeral hall or the alteration of use of the funeral hall, the lower court did not err in its determination in accordance with the aforementioned legal principles.

2. Regarding ground of appeal No. 2

Article 16 of the Criminal Act provides that "the act of misunderstanding that one's act does not constitute a crime under Acts and subordinate statutes shall not be punishable only when there is a justifiable reason for misunderstanding." Whether there exists a justifiable reason should be determined depending on whether the act was not aware of illegality as a result of his failure to perform his/her duty, although he/she could have sufficiently recognized illegality of his/her act if he/she had done his/her own intellectual ability and failed to do so. The degree of effort necessary for recognizing illegality should be determined differently according to the detailed situation of the act, the person's awareness ability, and the social group to which the actor belongs (see Supreme Court Decision 2005Do3717, Mar. 24, 2006, etc.).

The court below held that, when the defendant or Chungcheongnam-do extended the restaurant part of the funeral hall of this case, it could not be said that the defendant was aware that his act was not a crime, or that there was any justifiable ground for mistake as to the establishment and operation of the funeral hall of this case. However, in light of the above legal principles, the judgment of the court below is just and there was no error in the misapprehension of legal principles as to the legal reasoning in the misapprehension of the law under Article 16 of the Criminal Act, since the consultation with the Hongsung-gun was based on the premise that the extended part was an affiliated building of the hospital, not a funeral hall, and that the entry or approval for use in the building register was also the same. In the case of a general hospital, the inquiry of the Ministry of Construction and Transportation is not the purport that the establishment and operation of the funeral hall of this case can be deemed as an affiliated building, but the installation of the facility for funeral ceremony can be deemed as an affiliated use in the case of the death of the patient hospitalized in the general hospital.

3. Conclusion

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

Justices Lee Hong-hoon (Presiding Justice)