Defendant

Prosecutor

Kim Tae-tae (prosecution) and a new soldier's office (trial)

Attorneys Kim J-jin et al., Counsel for the defendant-appellant

Daejeon District Court Decision 201Da326 decided June 29, 2012

The prosecutor's appeal is dismissed.

1. Summary of the prosecutor's grounds for appeal;

According to Article 4(1) of the Addenda to the Mining Industry Act amended by Act No. 9882, Jan. 27, 2010, where authorization for mining plans was obtained prior to the enforcement of the amended Mining Industry Act, the former provision is applied, and Article 5(1) proviso amendment provision does not apply. In this case, the penal provision is the Criminal Act, but the provision on ownership, which is the premise of punishment provision, is the penal provision, and the provisions on ownership, which is the premise of punishment provision, cannot be deemed as having changed the legal ideology on the penal provision on the crime of property damage under the Criminal Act at the time of the amendment of the above provisions under the Mining Industry Act, and

2. Determination

A. Whether the facts charged in this case are subject to acquittal

1) The lower court rendered a judgment dismissing the instant charges on the ground that “Article 1(2) of the Criminal Act provides that “Where the act does not constitute a crime by the amendment of the law after an offense, it shall be governed by the new law, and the said amendment of the law shall include not only the Criminal Act but also the amendments of all the laws that form the premise for the application of the Criminal Act. Such amendments under Article 5(1) of the Mining Industry Act shall be based on reflective consideration following the changes in the legal ideology in light of the reason for the amendment. In accordance with Article 5(1) of the amended Mining Industry Act, even if a mining area is located within the victim’s mining area, minerals separated from the land in the course of performing civil works for the formation of golf courses of Nonindicted Co. 2, the landowner, as in the facts charged, constitute the proviso to the same Article, and the said mineral constitutes a case where the act does not constitute a crime by the amendment of the law after the crime was committed.”

2) On the other hand, Article 1(2) of the Criminal Act provides, “When an act does not constitute a crime due to an amendment of a law after a crime or a punishment is light compared to the former Act, the new Act shall govern.” Article 326 Subparag. 4 of the Criminal Procedure Act provides, “When a sentence is repealed due to the amendment of a law after a crime, the sentence of acquittal shall be rendered by judgment.” This exception to the principle of legal principle at the time of an act is that “Where an act is repealed or repealed due to the repeal of a law after the commission of a crime, the law shall be modified in favor of the defendant without making a judgment on the substance of the case, and the intention to promptly leave the defendant from the legal procedure is not only to refer to the amendment of the Criminal Act, but also to the amendment of another law, order, or municipal ordinance, which is a premise, the prosecutor’

(b) Whether the proviso of Article 5 (1) of the amended Mining Industry Act is applied (it takes into account the interpretation of Article 4 of the Addenda to the amended Mining Industry Act);

According to Article 4 (1) of the Addenda to the amended Mining Industry Act, a prosecutor asserts that if a mining plan is authorized prior to the enforcement of the amended Mining Industry Act, the previous provision is not amended, but the former provision is applied, and the proviso of Article 5 (1) is not applied. However, since the prosecutor's assertion appears to have interpreted the aforementioned supplementary provision as opposed, it cannot be accepted in itself. Furthermore, in cases where an application for the establishment of a mining right is filed under the previous provision of Article 4 (1) of the Addenda, notwithstanding the previous provision of the amended Act, the previous provision of Article 5 (Reversion of Separated Minerals) and Article 10-2 (Legal Capacity of Foreigners) are applied to substantive legal relationship, such as partial administrative regulations and procedures, and the revised provision of Article 10-2 (Legal Capacity of Foreigners) is applied to the mining right for which a mining plan is authorized under the previous provision, and thus, the above amended provision of Article 4 (1) of the Addenda shall be interpreted to the effect that the above amended provision of the main provision of Article 4 (1) of the Addenda shall not be applied.

C. Determination

1) 이 사건 공소사실의 요지는 “피고인은 공소외 1 주식회사의 현장소장인 사람인바, 2008. 6.경부터 2010. 10.경까지 사이에 공소외 1 주식회사가 공소외 2 주식회사로부터 수주하여 진행 중이던 충남 태안군 (이하 생략) 외 67필지 소재 ‘○○○○ 컨트리클럽(변경전 △△△△△ 컨트리클럽)’ 골프장 조성공사의 현장소장으로서 근무하게 되었는데, 당시 위 골프장은 ‘오션코스’, ‘밸리코스’, ‘마운틴코스’ 등 3개의 코스로 구성되어 있었고, 위 오션코스에는 피해자 공소외 3 주식회사 명의로 광업권이 등록된 규석광구(광업지적 모항 58호 소단위 2, 4호, 광종명 규석, 면적 137㏊) 28760㎡가 존재하고 있었으며, 위 규석광구 지상에는 약 1m의 깊이로 붕적된 규석 광물 약 91,821,55㎥이 노출되어 있었고, 피의자의 발파작업을 통하여 규석 광물 약 14,700㎥이 채취되었던바, 광구에서 노출되거나 분리된 광물의 소유권은 피해자 회사에 있음에도 불구하고 피의자는 피해자 회사로 하여금 위 광물을 수거해 갈 기회를 제공하지 아니한 채 채취한 광물을 포크레인 등을 이용해 덤프트럭에 적재한 후 오션코스 밖 인근 저지대 및 늪지대에 매립하여 성토재로 사용하는 방법으로 피해자 회사 소유의 규석 광물 합계 106,521.55㎥(평균 규석 분포 92.71%)을 손괴하였다.”는 것인 바, 재물손괴죄는 타인의 재물을 동의 없이 그 효용을 해하는 것이므로 재물손괴죄로 처벌하려면, 이 사건 광물이 피해자 등 타인의 소유로 인정되어야 하고, 피고인이 동의 없이 효용을 해하는 행위를 하였음이 인정되어야 할 것이다.

However, Article 5 (1) of the former Mining Industry Act provides that "The minerals separated from the land outside the mining area without mining rights or mining concessions shall belong to the mining right holder or mining concession holder." (2) Minerals separated from the land outside the mining area shall be owned by the person acquiring such rights: Provided, That this shall not apply to cases where a crime is committed." However, Article 5 of the Mining Industry Act amended by Act No. 9982 of January 27, 2010 shall belong to the mining right holder or mining concession holder: Provided, That the minerals separated from the land in the course of cultivation of crops, installation of structures, construction of buildings, etc. are owned by the owner of the land or the person having legitimate authority, but the owner of the land or the person having legitimate authority shall not be permitted to transfer the minerals separated from the land outside the mining area for the purpose of profit-making, and the same shall not apply to cases where the owner of the land or the person having legitimate authority over the mining right holder acquires the minerals separately from the land in accordance with the construction process."

2) In the case of this case, the new law shall be applied as seen above, and the following circumstances acknowledged by the court below as legitimate are, namely, the mineral of this case is separated from the land in the process of constructing a golf club for Nonindicted Co. 2, the land owner, and thus, it is not the victim but the ownership of Nonindicted Co. 2, and the defendant is the head of the site office of the ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ received from Nonindicted Co. 1 as the head of the site office of Nonindicted Co. 1, and the disposal of the mineral of this case is deemed to have obtained the presumed consent of Nonindicted Co. 2, the new law shall be applied in accordance with Article 1(2) of the Criminal Act, and the punishment is repealed

3. Conclusion

Therefore, the prosecutor's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Lee Jong-ho (Presiding Judge)