[1] In order to establish a crime of violation of Articles 74(1)3 and 36(1) of the former Creation and Management of Forest Resources Act through the extraction of trees which are forest products, whether the trees in question should be separated from land in terms of social norms (affirmative)

[2] In a case where the Defendant was prosecuted for violating the former Creation and Management of Forest Resources Act by digging up trees by cutting off the soil around trees without permission from the competent authorities and cutting off the trees, the case holding that the lower court erred by misapprehending the legal doctrine on the grounds that, inasmuch as approximately 1/4 of the roots part among the roots part where the Defendant engaged in the “breaking” remains in a state that is not separated from the land, and thus it cannot be deemed that the trees were extracted from the land, the lower court found the Defendant guilty on the ground that there was an error of law

[1] Article 36(1) of the former Creation and Management of Forest Resources Act (amended by Act No. 9763, Jun. 9, 2009; hereinafter “Forest Resources Act”) provides that a person who intends to cut standing timber, extract or gather forest products (hereinafter “standing timber cutting, etc.”) in a forest shall obtain permission from the competent authority. Article 74(1)3 of the same Act provides that a person who, in violation of Article 36(1), has “standing timber cutting, etc.,” without permission from the competent authority, shall be subject to criminal punishment. In this context, in order to establish a crime of violation of Article 74(1)3 of the Forest Resources Act under the extraction of trees which are forest products, the relevant trees shall be separated from land in terms of social norms.

[2] In a case where the Defendant was prosecuted for violation of the former Forest Resources Creation and Management Act (amended by Act No. 9763 of Jun. 9, 2009), since he extracted the soil around pine trees without permission from the competent authority and extracted the trees, the case holding that the lower court erred by misapprehending the legal principles in finding the Defendant guilty on the ground that approximately 3/4 out of the roots portion, where the Defendant engaged in the “breaking” work was separate from the land, and the remaining 1/4 cannot be deemed to have been extracted from the land, on the ground that the remaining 1/4 remains in a state that is not separated from the land

[1] Articles 36(1) and 74(1)3 of the former Creation and Management of Forest Resources Act (amended by Act No. 9763, Jun. 9, 2009) / [2] Articles 36(1) and 74(1)3 of the former Creation and Management of Forest Resources Act (amended by Act No. 9763, Jun. 9, 2009)

Defendant

Defendant and Prosecutor

Law Firm Cheongp, Attorneys Lee Hun-hwan et al.

Changwon District Court Decision 2010No2532 decided December 23, 2010

The conviction part of the judgment of the court below is reversed, and that part of the case is remanded to the Changwon District Court Panel Division. The prosecutor's remaining appeal is dismissed.

The grounds of appeal are examined.

1. As to the Prosecutor’s Grounds of Appeal

Article 36 (1) of the former Creation and Management of Forest Resources Act (amended by Act No. 9763, Jun. 9, 2009; hereinafter “Forest Resources Act”) provides that “a person who intends to cut standing timber or extract or gather forest products within a forest (hereinafter “standing timber cutting, etc.”) shall obtain permission from the head of a Si/Gun/Gu or the head of a regional forest office, as prescribed by Ordinance of the Ministry for Food, Agriculture, Forestry and Fisheries,” and Article 15 (6) of the former Management of Mountainous Districts Act provides that “When a person has obtained permission to cut standing timber, etc. pursuant to paragraph (1), he/she shall be deemed to have filed a report on the diversion of standing timber, etc. pursuant to Article 15 of the Management of Mountainous Districts Act with respect to the installation of mic roads and roads necessary for cutting standing timber, etc., and Article 15 (1) 1 of the former Mountainous Districts Management Act (amended by Act No. 1031, May 31, 2010)”

According to the reasoning of the judgment below, the court below found the following facts and circumstances based on the adopted evidence, and found the Defendant not guilty on the violation of the Mountainous Districts Management Act concerning the establishment of access roads among the facts charged in this case on the ground that the act of building access roads in the judgment of the court below is deemed to have been reported according to the permission of extraction, and

In light of the above relevant legal provisions and records, such determination by the court below is just, and there is no error of law by misapprehending the legal principles as to permission for conversion of mountainous district, contrary to what is alleged in

2. As to the Defendant’s ground of appeal

According to the reasoning of the judgment below, the court below found, based on the adopted evidence, that the Defendant’s act of cutting down the soil around 9gs of pine trees and then leading to the so-called “explosing” work constitutes the extraction of trees, and found the Defendant guilty of violating the Creation and Management of Forest Resources Act due to the act of digging out the trees from 21 Gyeongnam-gun, Gyeongnam-gun without the permission of the competent authorities.

However, it is difficult to accept the judgment of the court below that the above act of the defendant constitutes a extraction of trees.

As seen earlier, Article 36(1) of the Forest Resources Act provides that a person who intends to thin standing timber or extract and gather forest products (hereinafter “standing timber cutting, etc.”) in a forest shall obtain permission from the competent authority. Article 74(1)3 of the said Act provides that a person who, in violation of Article 36(1) of the said Act, fells into standing timber cutting, etc. without permission from the competent authority shall be subject to criminal punishment against a person who, without permission from the competent authority. However, in order to establish a crime of violation of Article 74(1)3 of the Forest Resources Act due to the extraction of trees, which are forest products, the said trees shall reach the point of separation from the land under social norms.

According to the records, it can be seen that approximately 3/4 of the roots portion is separated from the land, and the remainder of 1/4 remains in a state that is not separated from the land. Examining this in light of the legal principles as seen earlier, the Defendant cannot be deemed to have extracted the pine trees.

Nevertheless, the court below found that the above pine trees were extracted solely from the circumstances indicated in its holding, and found the defendant guilty of violating the Creation and Management of Forest Resources Act within 21, Maguri-ri, Magcheon-gun, Magcheon-gun, in the facts charged of this case. Thus, the court below erred by misapprehending the legal principles on the extraction of trees, etc., which affected the conclusion of the judgment.

3. Conclusion

Therefore, among the judgment of the court below, the violation of the Creation and Management of Forest Resources Act within 21, Gyeongcheon-gun, Gyeongcheon-gun, Gyeongcheon-gun, the judgment of the court below should be reversed. The judgment below is delivered with the assent of all Justices who reviewed the appeal by the prosecutor. It is so decided as per Disposition by the assent of all participating Justices on the bench that this part of the judgment of the court below is a concurrent crime under the former part of Article 37 of the Criminal Act with the crime of violation of the Creation and Management of Forest Resources Act (as there is a ground for reversal as to the guilty part of this part of the facts charged, the part of the judgment below's conviction is reversed, and that this part of the case is remanded to the court below for a new trial and determination, and the remaining appeal by the prosecutor is dismissed.

Justices Jeon Soo-ahn (Presiding Justice)