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The judgment of the court below is reversed.
The defendant shall be innocent.
Reasons
1. According to Article 4(1) of the Addenda to the Mining Industry Act as amended by Act No. 9882, Jan. 27, 2010, where authorization for a mining plan was obtained prior to the enforcement of the amended Mining Industry Act, the former provision is applicable, and the proviso to Article 5(1) of the amended Mining Industry Act does not apply.
In addition, in the case of this case, the punishment provision is the criminal law provision, while the provision on ownership, which is the premise of the punishment provision, cannot be deemed to have changed the legal ideology of the provision on the punishment provision on the crime of property damage under the Criminal Act at the time of amendment of the provisions on the Mining Industry Act, but the judgment of the court below which acquitted the defendant by applying Article 4 (1) of the Addenda to the amended Mining Industry Act and the proviso of Article 5 (1)
2. Determination
A. As to the attribution of minerals separated from the land of the relevant provision, Article 5(1) of the former Mining Industry Act (amended by Act No. 9882, Jan. 27, 2010; hereinafter “former Mining Industry Act”) stipulates, “The minerals separated from the land of the mining area without mining rights or mining concessions shall be owned by the mining right holder or mining concession holder.”
However, upon the amendment of the Mining Industry Act by Act No. 9882 on January 27, 2010 (amended by Act No. 9882, Jan. 28, 2011; hereinafter “Revised Mining Industry Act”), Article 5(1) of the same Act newly established the proviso that “The minerals separated from the land in the course of construction, etc. of a building for the cultivation of crops by a landowner or any other person who has a legitimate title to the land shall be owned by the relevant landowner or any other person who has a legitimate title to the land, but the land owner or any other person who has a legitimate title to the land shall not transfer separated minerals for the purpose of profit.”
In addition, Article 4 (1) of the Addenda to the amended Mining Industry Act provides that "Transitional Measures concerning Mining Rights, etc. for which no authorization for a mining concession plan has been obtained" is attached.