Defendant

Defendant

Park Jong-sung

Attorney Lee Young-soo (National Assembly)

Changwon District Court Jwon District Court Decision 2009DaMa123, 2009 decided September 16, 2009 (Joint Judgment)

1. The judgment below is reversed.

2. The defendant shall be punished by a fine of 700,000 won.

3. Where the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted by one day: Provided, That the fractional amount shall be one day;

4. An order to make the provisional payment of the amount equivalent to the above fine;

5. The charge of violating the Funeral Services, etc. Act among the charges of this case and the charge of violating the Farmland Act is acquitted, respectively.

1. Summary of grounds for appeal;

(a) misunderstanding of facts (Article 1 of the Criminal Act in the original judgment);

(1) The Defendant did not have established a family cemetery without permission since the Defendant buried remains and buried them. (2) Although there was no fact that diverted farmland was diverted without permission, the lower court erred by misunderstanding the fact that the Defendant, without permission, established a family cemetery and diverted farmland at the same time without permission, thereby adversely affecting the conclusion of the judgment.

B. Unreasonable sentencing

The punishment (fine 1.5 million won) imposed on the defendant by the court below is too unreasonable.

2. Determination

A. Points of mistake of facts

(1) Violation of the Funeral Services etc. Act

Article 14 (1) 2 of the Act on Funeral Services, Etc. (hereinafter “the Funeral Act”) provides “family cemetery” as “a cemetery established within the same area with a grave of a person who had a marital relationship under the Civil Act,” and “a grave” refers to “facilities where a corpse or remains are buried” (Article 2 subparag. 6 of the Funeral Act), and the Defendant asserts that the burial of five remains in a dry field constitutes a natural burial site, and thus, the issue of the instant case is whether the Defendant’s burial of five remains in the above remains constitutes the installation of a grave.”

However, the term "natural burial" asserted as a concept compared to the term "brech" refers to the burial of a decedent's remains under or around the bottom of trees, flowerss, lawns, etc. (Article 2 subparagraph 3 of the Funeral Act), and in the case of a family cemetery, the subject of criminal punishment without obtaining prior permission pursuant to Article 39 subparagraph 1 of the Funeral Act and Article 14 (3) of the Funeral Act, while in the case of a family natural burial ground, a report is filed with the Mayor, etc. pursuant to Article 16 (2) of the Funeral Act after the creation of the burial site, and if a report is neglected, an administrative fine is imposed pursuant to Article 42 (1) 6 of the Funeral Act.

According to the evidence duly adopted and examined by the court below, the defendant opened five graves (in case of remains buried in this grave, 1963, 1976, 1981, 1985, and 1996) in Jinju-si (hereinafter omitted), around June 19, 2008. The defendant buried the remains excavated in the above grave in Jinju-si, ○○ Park around June 24, 2008, and then buried them in the grave in 20 centimeters wide, and the remaining remains in the grave site of this case without considering the following facts: "It is difficult to recognize the fact that the defendant cultivated them in the grave site owned by the defendant on the same day (hereinafter omitted) of Jincheon-si, 208." The defendant's remaining remains in the grave site of this case where the body used by the defendant had been buried in the grave site of this case, it is difficult to conclude that the remaining remains in the grave site of this case had been buried in the grave of this case as the deceased tree of this case."

Therefore, it is difficult to see that the fact that the defendant installed a grave and created a family cemetery was proved beyond a reasonable doubt, and there is no other evidence to prove this part of the facts charged, and this part of the facts charged constitutes a case where there is no evidence to prove a crime, and the court below which found the defendant guilty of this part of the facts charged is erroneous

(2) Violation of the Farmland Act

The diversion of farmland under Article 2 subparagraph 7 of the Farmland Act refers to the use of farmland for purposes other than the cultivation of crops or perennial plants, and the examples of such acts are the installation of tangible objects, etc. that obstruct the alteration of the form and quality of farmland or the use of farmland, and the alteration of the form and quality of farmland refers to the alteration of the form and nature of farmland so that it cannot be used for the cultivation or cultivation of farmland (see Supreme Court Decision 97Do3094 delivered on May 8, 1998, etc.).

Comprehensively taking account of each evidence duly adopted and examined by the court below based on the above legal principles, the facts that the defendant opened a grave 5 grave as seen earlier and buried remains, and then buried them in a dry field located in Sacheon-si, Sacheon-si (hereinafter “instant farmland”) on June 24, 2008 (hereinafter “the instant farmland”), and cultivated the farmland on the buried part. The defendant still used the instant farmland used for the previous crops for the same purpose after June 24, 2008. Thus, it cannot be readily concluded that the defendant changed the form or nature of the instant farmland to be unusable for the same purpose.

In addition, there is no circumstance that the Defendant installed a tangible object that may interfere with the use of farmland in the farmland of this case, on the ground that the Defendant buried remains in the ground by cremation and buried them in the ground, or that the boundary was set up in part of the farmland of this case. Therefore, it is difficult to readily conclude that the Defendant installed a tangible object that may interfere with the use of farmland.

Therefore, it is difficult to see that the fact that the Defendant diverted the farmland of this case to the extent that it is beyond a reasonable doubt, and there is no other evidence to prove this part of the facts charged, and therefore, this part of the facts charged constitutes a case where there is no evidence of crime, and the court below which found the Defendant guilty of this part of

B. The point of unfair sentencing

As to the violation of the Act on Special Cases Concerning the Settlement of Traffic Accidents among the facts charged in the instant case, although the liability of the Defendant is not less than that of causing injury to the victims by disregarding and proceeding with stop signal at the intersection, considering the fact that the Defendant has led to a crime, there is no previous conviction, the Defendant’s age, character and conduct, intelligence and environment, motive, circumstance, means and consequence of the instant crime, and the circumstances after the crime, etc., the lower court’s punishment is too unreasonable.

3. Conclusion

Therefore, the judgment of the court below is reversed, and it is again decided as follows.

On December 9, 2008, the Defendant driven a cargo vehicle (vehicle number 1 omitted) and turn to the left at the speed of about 30 km at the speed of about 30 km at the speed of the non-indicted 1 agricultural bank. In such cases, the Defendant was an intersection in which the signal, etc. is installed at the speed of about 30 km from the surface of the non-indicted 1 agricultural cooperative. In such cases, the driver was negligent in disregarding the stop signal even though he had a duty of care to safely proceed in accordance with the new name, and due to the negligence of driving the two-lanes of the non-indicted 2 driver (vehicle number 2 omitted), driving the two-lanes of the two-lanes of the vehicle to the right side of the non-indicted 2 driver's (vehicle number 2 omitted) and caused the victim (the non-indicted 3 (the non-indicted 68 years old), who is the passenger of the non-indicted 2 driver's vehicle, to the right side of the vehicle, and caused the victim to suffer from approximately 3 (5.).

1. Defendant's legal statement;

1. Statement on Nonindicted 2’s statement

1. The actual condition of traffic accidents;

1. Each written diagnosis;

1. An accident site photograph;

1. Article applicable to criminal facts;

Article 3(1) of the Act on Special Cases concerning the Settlement of Traffic Accidents, Article 268 of the Criminal Act

2. Competition;

Articles 40 and 50 of the Criminal Act

3. Selection of punishment;

Selection of Fines

4. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

5. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Of the facts charged in the instant case, the summary of the violation of the Funeral Services Act and the violation of the Farmland Act is as follows: “The Defendant is the owner of Seocheon-si, Seocheon-si (hereinafter omitted) dry field 727 square meters, and the person who intends to install and manage family graveyards shall obtain permission from the Mayor, etc. having jurisdiction over the relevant cemetery, and the person who intends to divert the farmland shall obtain permission to divert the farmland, but around June 24, 2008, the person who intends to divert the farmland shall not obtain permission from the private market on the field located in Seocheon-si, Seocheon-si (hereinafter omitted) with a size of 82 square meters (3.8m x 21.6m x 21.6m) of the cemetery area and divert the farmland at the same time without permission.” Accordingly, this part of the facts charged constitutes a case where there is no proof of a crime on the grounds as set forth in Article 2(a) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges in English and English (Presiding Judge)