[1] The meaning of “person subject to report” under Articles 50 subparag. 3 and 11(3) of the Act on the Management and Use of Livestock Excreta, and the person who installed waste-generating facilities did not have the person subject to report at the time of installation. However, in a case where the pertinent waste-generating facilities fall under the subject of report pursuant to the amendment of the statutes thereafter, whether it constitutes “a person who intends to install waste-generating facilities” (negative)

[2] Whether “the crime of installing waste-generating facilities without filing a report” under Articles 50 subparag. 3 and 11(3) of the Act on the Management and Use of Livestock Excreta constitutes “Immediate demonstration” (affirmative)

[3] In a case where the Defendant was prosecuted for violating the former Act on the Management and Use of Livestock Excreta on the ground that he did not report the installation of a dog-raising facility while raising livestock excreta, the case holding that the lower court erred by misapprehending the legal doctrine on the ground that the Defendant did not constitute “a person who intends to install discharge facilities” as a person subject to reporting under Articles 50 subparag. 3 and 11(3) of the same Act

[1] Article 50 subparag. 3 and Article 11(3) of the Act on the Management and Use of Livestock Excreta (hereinafter “the Livestock Excreta Act”) refer to “a person who intends to install or alter the reported matters in excess of the scale prescribed by the Presidential Decree” and “a person who intends to install or alter the reported matters at the time of the installation of a waste-generating facility,” even if the person who installed the waste-generating facility was not obligated to report pursuant to the amendment of the relevant Act and subordinate statutes, it cannot be deemed as a “a person who intends to install the waste-generating facility,” who is subject to reporting under the above provision. In addition, considering that penal provisions should be strictly interpreted and applied in accordance with the language and text of the relevant penal law and they shall not be excessively expanded or analogically interpreted in the direction unfavorable to the defendant, the above interpretation should be likewise applied even if Article 2(1) of the Addenda of the Enforcement Decree of the Livestock Excreta Act without delegation of the Livestock Excreta Act provides that “a person who installs or operates the waste-generating facility subject to reporting under Article 8 and [Attachment 2].”

[2] In light of the contents and legislative progress of Article 50 subparag. 3 and Article 11(3) of the Act on the Management and Use of Livestock Excreta, “the crime of installing waste-generating facilities without filing a report” should be deemed to be “the crime of installing waste-generating facilities without filing a report,” which is established immediately upon the completion of such act, and simultaneously completed at the same time.

[3] In a case where the Defendant was prosecuted for violation of the former Act on the Management and Use of Livestock Excreta (amended by Act No. 10973, Jul. 28, 201; hereinafter “the Livestock Excreta Act”), on the ground that he did not install a dog raising livestock excreta and did not report the installation of a livestock excreta discharge facility, the case holding that the judgment below erred in the misapprehension of legal principles on the ground that the Defendant did not apply Article 2(1) of the Enforcement Decree of the Livestock Excreta Act to a person who installed and operated a waste discharge facility since he did not newly install a waste discharge facility even after the enactment of the Livestock Excreta Act, and it did not constitute “person who intends to install a waste discharge facility” as a person subject to reporting under Articles 50 subparag. 3 and 11(3) of the Enforcement Decree of the Livestock Excreta Act (amended by Act No. 10973, Jul. 28, 2011; hereinafter “the Livestock Excreta Act”).

[1] Articles 11(3) and 50 subparag. 3 of the Act on the Management and Use of Livestock Excreta, Article 8 and [Attachment 2] of the Enforcement Decree of the Act on the Management and Use of Livestock Excreta, Article 2(1) of the Addenda ( September 27, 2007) / [2] Articles 11(3) and 50 subparag. 3 of the Act on the Management and Use of Livestock Excreta / [3] Article 12(1) of the Constitution of the Republic of Korea, Article 1(1) of the Criminal Act, Article 2 subparag. 1 and 3 of the former Enforcement Decree of the Act on the Management and Use of Livestock Excreta (Amended by Act No. 10973, Jul. 28, 201); Article 2 subparag. 3 and Article 50 subparag. 3 of the Enforcement Decree of the Act on the Management and Use of Livestock Excreta, Article 2, [Attachment 2] Article 8 of the Addenda of the Enforcement Decree of the Act on the Management and Use of Livestock Excreta, Article 20 subparag.

[1] Supreme Court en banc Decision 90Do1516 Decided November 27, 1990 (Gong1991, 285), Supreme Court Decision 2000Do5895 Decided March 9, 2001 (Gong2001Sang, 915), Supreme Court Decision 2006Do4582 Decided June 29, 2007 (Gong2007Ha, 1225), Supreme Court Decision 2010Do4946 Decided December 9, 2010 / [2] Supreme Court Decision 2009Do12728 Decided January 28, 2010

Defendant

Defendant

Suwon District Court Decision 2010No5521 Decided February 8, 2011

The judgment of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.

The grounds of appeal are examined.

Article 50 subparag. 3 of the Act on the Management and Use of Livestock Excreta (hereinafter “Act”). Article 50 subparag. 2 of the same Act provides that “A person who installs a waste-generating facility without reporting in violation of Article 11(3) or with reporting by fraudulent or other illegal means.” Article 11(3) of the same Act provides that “A person who intends to install a waste-generating facility above the scale prescribed by Presidential Decree among discharge facilities not subject to permission under paragraph (1) shall report to the head of a Si/Gun/Gu as prescribed by Ordinance of the Ministry of Environment. The same shall also apply to cases where he/she intends to modify the reported matters.” Articles 50 subparag. 3 and 11(3) of the same Act provides that “a person who intends to install a waste-generating facility above the size prescribed by Presidential Decree or who intends to modify the reported matters to the head of a Si/Gun/Gu at the same time when the person who installed the waste-generating facility at the same time shall not be deemed to have been subject to reporting pursuant to Article 20 subparag. 3 and 10 of the Act. 9 of the same Act.

However, Article 2 subparagraph 4 of the former Act on the Disposal of Sewage, Excreta and Livestock Wastewater (repealed by Article 2 of the Addenda to the Sewerage Act, Act No. 8014, Sept. 27, 2006; hereinafter “livestock wastewater treatment facilities” means livestock excreta treatment facilities and other places prescribed by Ordinance of the Ministry of Environment due to livestock raising; subparagraph 11 of the same Article means livestock excreta treatment facilities prescribed by Ordinance of the Ministry of Environment; and Article 8-2 of the Enforcement Decree of the same Act means livestock excreta treatment facilities (including livestock excreta treatment facilities prescribed by Ordinance of the Ministry of Environment; hereinafter “livestock excreta treatment facilities”); and Article 2 subparag. 11 of the same Act provides that livestock excreta treatment facilities shall include livestock excreta treatment facilities prescribed by Ordinance of the Ministry of Environment; and Article 2 subparag. 11 of the Enforcement Decree of the same Act shall also include livestock excreta treatment facilities prescribed by Ordinance of the Ministry of Environment.

Therefore, a dog breeding facility (12 Dong, 338 square meters) installed by the Defendant does not constitute a discharge facility subject to reporting prior to the enactment of the Livestock Excreta Act. Moreover, even after the enactment of the Livestock Excreta Act, it is merely a new installation of a discharge facility, not a previous installation. Examining the foregoing legal principles in light of the legal principles as seen earlier, it cannot be deemed that the Defendant, without distinction as to whether Article 50 Subparag. 3 of the Addenda provision of this case applies to the Defendant, does not constitute “a person who intends to install a discharge facility” as a person subject to reporting under Articles 11(3) and

Nevertheless, the lower court determined that the Defendant’s act constitutes “a person who intends to install discharge facilities,” who is subject to the reporting under Articles 50 subparag. 3 and 11(3) of the Livestock Excreta Act, and found the Defendant guilty of the part of installation of unreported discharge facilities from September 28, 2008 to March 30, 2010, the day following the expiration of the grace period under the Addenda provision of this case among the instant facts charged. Thus, the lower court erred by misapprehending the legal doctrine on the interpretation of Articles 50 subparag. 3 and 11(3) of the Livestock Excreta Act, which affected the conclusion of the judgment.

Therefore, the judgment of the court below is reversed and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)