Defendant

Defendant

List of Maternity

Attorney Kim Young-chul

Seoul Northern District Court Decision 2006Gohap2889 Decided January 3, 2008

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for six months.

The 16-day detention days prior to the pronouncement of the judgment below shall be included in the above sentence.

However, the execution of the above punishment shall be suspended for one year from the date this judgment becomes final and conclusive.

Acquittal of violation of the Public Waters Management Act under paragraph (1) among the facts charged in this case

1. Summary of grounds for appeal;

A. Meritorious of legal principles

(1) The lower court found the Defendant guilty of the facts charged and erred by stating that “The Defendant occupied and used public waters, the area of which is not smaller than the size of a branch line of a branch line of a branch line of the lower judgment (hereinafter omitted)” did not specify the facts charged.

② The Defendant purchased a lot of land around December 1981 and occupied and used from around December 1982, including 486 square meters and 100 square meters (hereinafter “instant land”) among the public waters in the area of a branch line in the facts charged (hereinafter “1 omitted), and thus, the statute of limitations for each of the instant violations of the Public Waters Management Act has expired.

③ The instant land is a land adjacent to a river, and is subject to the Public Waters Management Act, separate from that subject to the River Act.

B. Fact-finding

① The instant land occupied by the Defendant was originally woodland and was registered in the cadastral record, but the said cadastral record was destroyed by a disaster of 6.25 and thus has not yet been restored, and is still forest and is not public waters.

② In addition, it is not public waters even if the nature as seasides is lost or implicitly abolished through drainage maintenance works executed by the State prior to the early February 2006.

③ Even if the instant land occupied and used by the Defendant for household affairs is public waters, it was occupied by the Defendant with knowledge of the ownership management (hereinafter 2 omitted), (hereinafter 3 omitted), and (hereinafter 4 omitted) as part of 7,755 square meters in forest land so there was no intention to occupy and use public waters.

C. The point of unfair sentencing

When considering various circumstances, such as the circumstances leading to this case, the sentence (six months of imprisonment) imposed on the defendant by the court of original judgment is too unreasonable.

2. Determination:

A. As to the violation of the Public Waters Management Act under paragraph (1) of the facts charged

This paper examines whether the statute of limitations for the above crime has already expired or not.

Article 21 subparagraph 1 of the Public Waters Management Act, which is established when a person occupies or uses public waters without permission from the competent authority, shall be immediately established by performing an act of occupation or use without permission, and at the same time the so-called crime or immediate crime completed (see, e.g., Supreme Court Decision 86Do435, Oct. 14, 1986; Supreme Court Decision 2007Do5208, Jan. 24, 2008; Supreme Court Decision 2001Do6442, Apr. 9, 2002; Supreme Court Decision 2001Do642, Apr. 9, 2002).

Of the facts charged as to the Defendant’s violation of the Public Waters Management Act, the gist of paragraph (1) is that “the Defendant buried 486 square meters in the public waters of Pyeongtaek-si area management (hereinafter omitted) around November 10, 1990 and used four containers installed on that day until November 10, 206 and used them as a warehouse, etc.”

However, even according to the facts charged itself, the Defendant’s act of reclaiming part of the public waters around 1990 and installing a container above it should be deemed to have been completed at the latest around December 31, 1990.

Meanwhile, the statutory penalty for the above crime is a fine of not more than one year under Article 21 subparagraph 1 of the Public Waters Management Act or a fine of not more than ten million won. Thus, the statute of limitations under Article 249 (1) subparagraph 5 of the former Criminal Procedure Act (amended by Act No. 8730 of Dec. 21, 2007) is three years, and it is apparent that the prosecution of this case was instituted on November 22, 2006 after three years from December 31, 1990. Thus, the judgment of acquittal should be pronounced on the charge of violating the Public Waters Management Act under paragraph (1) among the charges against the defendant.

Nevertheless, the court below found guilty of violating the Public Waters Management Act under paragraph (1) among the facts charged. The court below erred by misapprehending the legal principles as to the statute of limitations, which affected the conclusion of the judgment. Therefore, the appeal pointing this out is justified.

B. As to the violation of the Public Waters Management Act under paragraph (2)

(1) Meritorious legal principles

(1) Criminal facts unspecified

Article 21 subparagraph 1 of the Public Waters Management Act provides that "a person who occupies or uses public waters without obtaining permission for occupancy or use" shall be punished. The judgment of the court below stated in the statement of criminal facts that "the defendant additionally buried and occupied and used public waters, which is a beach in the area not smaller than the area of the first patrol officer (hereinafter omitted) on February 2, 2006, without obtaining permission from the competent administrative agency." The criminal facts of the court below include all the elements of the crime of violation of the Public Waters Management Act, since the date, time, place, object, method, etc. of the crime are specified in detail, and therefore all the elements of the crime of violation of the above Public Waters Management Act are specified in the crime. Therefore, even if the area and location of the occupied and used are not accurately stated, the above assertion by the defendant cannot be accepted.

(2) The statute of limitations shall expire.

As seen earlier, the facts that this case’s crime is a state crime or an immediate crime are as seen in the facts charged. However, the crime in paragraph (2) of the facts charged in this case is that “the defendant buried and occupied public waters, which are the seashores of the first Posnman management (hereinafter omitted) on February 2, 2006, which is the seashores of the first Posnman management (hereinafter omitted) without obtaining permission from the competent authorities, and it is apparent that the prosecution in this case was instituted on November 22, 2006. Thus, the statute of limitations for the violation of the Public Waters Management Act in paragraph (2) of the facts charged has not yet expired.

In this regard, the defendant argued that the statute of limitations should be calculated from that time because he purchased the land of this case including the land of this case on December 12, 1981 and occupied and used it from that time. However, although it is acknowledged that he occupied and used the land of this case from that time of February 1982, the defendant's assertion that the statute of limitations should be calculated from that time. However, inasmuch as it is acknowledged that he buried the land of this case on February 2, 2006 after covering 25 tons of soil on the public waters in early February 2, 2006, it is reasonable to view that the act of occupation and use without permission is not only infringement of new legal interests, but also infringement of new legal interests, and the act of occupation and use without permission should be established again at that time.

(3) Regarding the application of the River Act:

When comprehensively considering the testimony of the witness Non-Indicted 1, the defendant's instruction and aerial photography, etc., the part where the defendant occupied without permission is obviously open to the sea. Thus, the above argument of the defendant is rejected.

(2) Points of mistake of facts

(1) Regarding whether forest land is forest land

The term “seashores” is included in the public waters under the Public Waters Management Act, and it refers to the distance from the full tide water level to the area registered in the cadastral record. According to the evidence of the judgment below, the land of this case is an area outside the area registered in the cadastral record, and there is no data to regard it as a forest, as it is alleged by the defendant.

According to the old cadastral map drawn up around 1950, the Defendant alleged that the instant land was included in the forest and field, but the current cadastral record was omitted. However, compared with (i) the old cadastral record (forest), the current cadastral record, 48, 48, 79, and 135 pages), the boundary line of the old cadastral map and the current cadastral record (forest records), and the current cadastral record, are deemed to coincide with W in the form of “W”, and the instant land is also deemed to be a forest and field land on the old cadastral map. (ii) If a parcel of land is registered in one lot of land on the cadastral record under the Cadastral Act, the boundary of the said land is specified by this registration, barring any special circumstances, and where there were any special circumstances such as erroneous preparation of a boundary different from the true cadastral record due to technical errors, such as selecting points in the cadastral record, the boundary of the land is not determined by the present cadastral record, and thus, the land was not included in the current forest and field boundary (see the present cadastral record).

(2) Regarding implied abolition of public use:

In light of the above legal principles, since the public waters are so-called natural public objects, which are directly offered for public use, and even if part of the public waters were actually reclaimed by the State, they still possess the nature of public waters as long as the state does not abolish them as public waters, it is still legally. On the other hand, the expression of intent to abolish the public waters is not only explicitly expressed but also impliedly expressed, but also legitimate declaration of intention, and the administrative property is in a state where it is not provided for its original purpose, it cannot be deemed that there was an expression of intent to abolish the public waters by the management agency (see, e.g., Supreme Court Decisions 94Da42877, Nov. 14, 1995; 95Da52383, May 28, 1996).

(3) Intentions shall be involved.

According to the evidence of the following holding, the land of this case is a public water connected to the sea, and the defendant was appointed to the site at the time of reclaiming the seaside, which is a public water surface, without permission from the competent police authority on February 2, 2006, and the public official in charge at the time of reclaiming the seashores, and ordered the defendant to suspend the reclamation, but the defendant was found to have neglected it and continued reclamation. Accordingly, the defendant is found to have been aware that the land of this case may constitute public waters. Accordingly, the above argument by the defendant is rejected.

3. Conclusion

Therefore, the court below's finding the Defendant guilty of Paragraph (2) of the facts charged, but the finding of the Defendant guilty of Paragraph (1) of the facts charged, as seen earlier, erred by affecting the conclusion of the judgment, and on the other hand, since the court below rendered a single sentence on each of the above facts charged, the judgment of the court below shall be reversed in the end. Therefore, without examining the decision on unfair sentencing, the judgment of the court below is reversed in accordance with Article 364 (

When the defendant intends to occupy and use public waters, he did not obtain permission from the competent authorities despite obtaining permission from the competent authorities, and buried and occupied public waters, which are seasides on the area and non-area of a branch line, on February 2, 2006.

1. The statement made by Nonindicted 2 in the fifth trial records of the court below and the statement made by Nonindicted 1 in the nine trial records of the court below.

1. A statement to the effect that on February 2, 2006, the Defendant buried the land adjacent to Pyeongtaek-si management (hereinafter omitted) on the 25 tons of trucks in the suspect examination protocol of the prosecution against the Defendant, covering the 25 tons of the 25 tons of trucks with earth;

1. Statement of the prosecutor’s statement on Nonindicted 2 (including attached survey drawings and photographs)

1. Image pictures of a complaint and the site of reclamation attached thereto;

1. Article relevant to the facts constituting an offense and the selection of punishment;

Public Waters Management Act Article 21 subparagraph 1 (Preparation of Imprisonment)

1. Inclusion of days of detention in detention;

Article 57 of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act (Incompetence of the Criminal Act, and Consideration of the commission of this case, etc.)

Of the facts charged in this case, the part that "the defendant buried 486 square meters of the public waters in the area of Pyeongtaek-si area management (hereinafter referred to as "one omitted) around 1990 and used four containers as a warehouse until November 10, 2006, and occupied and used them in a warehouse, etc." among the public waters in the area of Pyeongtaek-si area management (hereinafter referred to as "the 486 square meters of the public waters in the area of the branch line" was already completed for the same reason as mentioned above, and thus, the statute of limitations has already been completed, a judgment of acquittal pursuant to Article 326

Judges Lee Jong-hee (Presiding Judge) Kim Jong-il