Defendant 1 and one other

Both parties

Gangnam-gu, Lee Sung-il, Lee Sung-sung, Lee Sung-sung, Park Jong-sung, Park Jae-young (prosecution), and South Korean (public trial)

Attorneys Noh Jeong-min et al.

1. Jung Government District Court Decision 2017Da2342, 2017 Godan2855, 2017 Godan3661 (Consolidated) decided January 19, 2018, and 2. Incheon District Court Decision 2017 Godan1309, 2017 Godan2217 (Consolidated) decided December 15, 2017, Supreme Court Decision 2018 Goyang145 decided August 16, 2018

All the judgment below is reversed.

Defendant 1, among the judgment of the court of first instance, shall be punished by imprisonment for six months with prison labor for the crimes of Articles 1 and 3 in the judgment of the court of first instance, by imprisonment for six months with prison labor for the crimes of Article 3 in the judgment of the court of first instance, and by imprisonment for two years with prison labor for two years and by fine for twenty thousand won.

When Defendant 2 fails to pay the above fine, Defendant 2 shall be confined in a workhouse for the period calculated by converting KRW 100,000 into one day.

Defendant 2 shall order the provisional payment of an amount equivalent to the above fine.

Of the facts charged in the instant case, Defendant 2 was acquitted from violation of the Wastes Control Act from October 1, 2015 to October 2, 2015.

1. Summary of grounds for appeal;

(a) Public prosecutor (as to the defendant 2 (as to the defendant)):

The punishment (two years of imprisonment and fine 20 million won) of the judgment of the court below in the second instance is too unhued and unfair.

B. Defendants

1) Defendant 1

Each court below's punishment (the first crime in the judgment of the court of first instance: imprisonment with prison labor for two months, the third crime in the judgment of the court of first instance for six months, and the third crime in the judgment of the court of first instance for four months) is too unreasonable.

2) Defendant 2

A) misunderstanding of facts, misunderstanding of legal principles

(1) As to the first part of the judgment of the court of first instance

At the time, the defendant was working as a health radar, and he did not have any work related to wastes.

(2) As to the second instance judgment on the violation of the National Technical Qualifications Act

Article 26(3)1 of the National Technical Qualifications Act should be interpreted as a provision punishing a person who borrows a national technical qualification certificate itself in accordance with the principle of no punishment without the law. While the Defendant borrowed a national technical qualification certificate from Nonindicted 2, the Defendant has no fact of borrowing the qualification certificate itself.

(3) As to the part of the lower judgment that obtained a waste treatment business license by falsity

Although there is a fact that the defendant acquired a license for a comprehensive waste recycling business and succeeded to it, there is no fact that he obtained a license for a comprehensive waste recycling business from Kimpo-si.

(4) Of the judgment of the court below of the second instance, regarding the part that wastes were dumped in a place other than the designated place, the Defendant did not deem that the collected wastes were subdivided into the waste storage place and stored them in the waste storage place installed.

B) Unreasonable sentencing

Each court below's punishment (the first court's judgment: 4 months of imprisonment, 2 years of imprisonment and 20 million won of fine) is too unreasonable.

2. Ex officio determination

Before the judgment on the grounds for appeal was made ex officio, the appeal case was combined with the first instance court. The first instance court's judgment against Defendant 1 is related to the concurrent crimes under Article 38 (1) of the Criminal Act, since each of the crimes under Articles 1 and 3 of the judgment of the court of first instance and the crimes under Articles 1 and 2 of the judgment of the court of first instance against Defendant 2 is related to the concurrent crimes under the former part of Article 37 of the Criminal Act, one of the crimes under Article 38 (1)

On the other hand, according to the records, Defendant 1 was sentenced to two years of imprisonment on September 20, 2017 by the Central District Court for the violation of the Wastes Control Act (the crime after January 19, 2016), etc., and the judgment became final and conclusive on February 2, 2018. Thus, the crime of violation of the foregoing Waste Act and the crime of violation of Article 3 of the judgment of the court of first instance in the relation of concurrent crimes under the latter part of Article 37 of the Criminal Act and the crime of violation of Article 39(1) of the judgment of the court of first instance must be determined in consideration of equity in the case where the judgment is rendered simultaneously in accordance with

However, the defendant 2's assertion of misunderstanding of facts and misapprehension of legal principles is still subject to the judgment of this court.

3. Judgment on the mistake of facts and misapprehension of legal principles by Defendant 2

A. Judgment on the part concerning the first crime in the judgment of the court of first instance

1) Summary of this part of the facts charged

In order to operate a waste disposal business, permission from the competent authorities shall be obtained.

The Defendants did not obtain permission from the competent authority, from October 1, 2015 to October 2, 2015, and received KRW 1.8 million from the Gyeonggi-si ○○○○○○, which was the total cost of disposal from around 1, 2015 to around 2, 2015, and carried in a waste disposal business, such as bringing about approximately KRW 1.8t of business site wastes into the factory site of Gyeonggi-si (location omitted) and storing them.

Accordingly, the Defendants conspired to engage in waste disposal business without obtaining permission from the competent authorities.

2) Determination

The Defendant, from an investigative agency to the lower court, denied this part of the facts charged by the Defendant, to the same purport.

In full view of the following circumstances acknowledged by the lower court and the first instance court’s evidence duly admitted and investigated: (i) the Defendant appears to have commenced the instant waste business with Nonindicted 3, not Co-Defendant 1, and the point at which it appears to be around May 2016; (ii) Co-Defendant 1 appears to have shown in the first instance trial that the Defendant made a false confession at the investigative agency upon his/her request; (iii) the Defendant’s statement to the effect that he/she made a confession at the investigative agency was made upon his/her request; and (iv) the Defendant’s statement to the effect that he/she was found to have been aware of his/her four times after Co-Defendant 1’s four times, and that he/she appears to have maintained a friendly relationship for a long time. Meanwhile, it is difficult to acknowledge this part of the facts charged only with the evidence submitted by the Prosecutor, and there is no other evidence to acknowledge this otherwise.

Therefore, the defendant's above assertion is justified.

B. Judgment of the court below on the violation of the National Technical Qualifications Act

In light of the legislative purpose and contents of the National Technical Qualifications Act and the purport of Section 1), it is difficult to see that only lending or borrowing a national technical qualification certificate itself is punished. ② Interpretation as the Defendant’s assertion can lead to unreasonable consequences arising from a gap in punishment in the event of an issue of lending or lending the qualification itself, as in the instant case (other states 2) where statutes prescribe that lending or borrowing a national technical qualification certificate prohibited by the National Technical Qualifications Act shall also include lending or borrowing of a qualification certificate itself as well as lending or borrowing of a qualification.

Therefore, the defendant's above assertion is without merit.

C. Determination as to the part of the judgment of the court below on the ground that the waste treatment business license was obtained fraudulently

Article 33(1) of the Wastes Control Act provides, “If a waste disposal business operator, a person who has obtained approval for, or reported on, installation of waste disposal facilities under Article 29, a person who has filed a report on waste disposal business, a person who has filed a report on, or an exclusive container manufacturer transfers or dies of, waste disposal business, waste disposal facilities, facilities, or exclusive container manufacturing business under Article 46(1), or a corporate merger takes place, the transferee, the heir, or the corporation surviving the merger, or the corporation incorporated by the merger succeeds to the rights and obligations arising from the permission, approval, registration, or report.” (2) As such, the legal effect of the person who has taken over the waste disposal business takes place as mentioned above as the above report; (3) If interpreted as Defendant’s assertion, the person who acquired the waste disposal business can be punished only when the person who obtained the first permission from the Mayor/Do Governor by fraudulent or other illegal means, and there is a gap in punishment, it shall be construed that the transferee succeeds to the rights and obligations of the person who has obtained

Therefore, the defendant's above assertion is without merit.

D. Determination on the part of the judgment of the court below on the second instance that the wastes were dumped in a place other than the designated place

In light of the following circumstances acknowledged by the evidence duly adopted and examined by the court below: ① farmland stated in this part of the facts charged does not fall under a place where commercial waste can be properly dumped; ② Nonindicted Co. 1, which the defendant acquired, was a company in which the defendant had defaulted 2 years prior to his acceptance; and ② it appears that there was no waste disposal facility or equipment that can be operated at the time (Evidence No. 946 of the record); ③ the defendant received prosecutorial investigation upon succession to the rights and obligations arising from the permission for waste disposal business; ③ the defendant stated that he did not have any additional installation of waste disposal facility or equipment, and that he was thought to have been neglected to bring waste into the beginning; ④ the defendant did not have any specific plan to dispose of waste; ④ The defendant did not keep the instant waste, but did not have any other specific plan to dispose of it.

Therefore, this part of the defendant's assertion is without merit.

4. Conclusion

Therefore, Defendant 2’s assertion of misunderstanding of facts and misapprehension of legal principles is partly reasonable, and the judgment of the court below is reversed in accordance with Article 364(2) of the Criminal Procedure Act without examining both parties’ assertion of unfair sentencing, and it is again decided as follows.

The summary of the facts constituting the crime recognized by this court and the evidence related thereto are the same as the entries in each corresponding column of the judgment of the court below, so they are quoted in accordance with Article 369 of the Criminal Procedure Act.

1. Of the judgment of the court of first instance, the facts constituting the crime against the 2017 Highest 2342 shall be charged as follows:

In order to operate a waste disposal business, permission from the competent authorities shall be obtained.

Defendant 1 did not obtain permission from the competent authority, from October 1, 2015 to October 2, 2015, Defendant 1 engaged in waste disposal business, such as bringing about approximately KRW 1.8 million in total industrial waste at the site of a factory in Gyeonggi-si (location omitted) in Gyeonggi-si, and storing them.

Accordingly, the Defendant operated a waste disposal business without obtaining permission from the competent authorities.

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

Defendant 1: Article 64 subparag. 1, Article 25(3)(1) of the former Wastes Control Act (Amended by Act No. 13411, Jul. 20, 2015); Article 64 subparag. 5, Article 25(3) of the Wastes Control Act; Article 30 (3) of the Criminal Act; Article 347(1) of the Criminal Act (Fraud)

Defendant 2: Each of the former Wastes Control Act (Amended by Act No. 1341, Jul. 20, 2015; hereinafter “former Wastes Control Act”); Articles 64 subparag. 1, 25(3) of the Criminal Act; Article 30 of the Criminal Act (amended by Act No. 1341, Jul. 20, 2015; hereinafter “Capital Selection”); Articles 64 subparag. 6, 25(3) of the Wastes Control Act (amended by Act No. 1); Articles 64 subparag. 1, 63 subparag. 1, and 8(1) of the Wastes Control Act (amended by Act No. 1341, Jul. 20, 2015; hereinafter “former Wastes Control Act”); Articles 64 subparag. 5, 25(3) of the Wastes Control Act; and Article 30(2) of the Criminal Act (amended by Act No. 2010, Feb. 2, 2012)

1. Handling concurrent crimes;

Defendant 1: The latter part of Articles 37 and 39(1) of the Criminal Act [the crime of this case by Defendant 1, as pointed out in the written judgment of the court below of the third instance, is not both a final and conclusive judgment as of January 19, 2016, but both a final and conclusive judgment as of February 2, 2018 and a latter concurrent crime as stipulated in Article 37 of the Criminal Act. However, as there is no final and conclusive judgment, since several crimes which have not yet been tried before and after the final and conclusive judgment cannot be judged concurrently with the crime for which a final and conclusive judgment became final and conclusive, it is deemed that there was no final and conclusive judgment among several crimes, and Article 38 of the Criminal Act is deemed to be applicable. Thus, it is inevitable to separately determine and sentence each crime before and after the final and conclusive judgment (see, e.g., Supreme Court Decision 2014Do469, Mar. 27, 2014).

1. Aggravation for concurrent crimes;

Defendants: former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act

1. Detention in a workhouse;

Defendant 2: Articles 70(1) and 69(2) of the Criminal Act

1. Order of provisional payment;

Defendant 2: Article 334(1) of the Criminal Procedure Act

1. Defendant 1

Even after having been sentenced to a ruling suspending the execution of imprisonment with labor for the same crime, the defendant committed the crime in this case, and thereby deceiving the victim in the process, thereby acquiring pecuniary benefits equivalent to the real estate rent. In light of the contents of the crime and the participation period, etc., the nature of the crime is not very good. Environmental crimes are not only continuous and extensive damage occurrence but also need to be strictly punished because it is not easy to recover from damage. This is an unfavorable circumstance to the defendant.

However, the Defendant shows an attitude to recognize and reflect the instant crime. The equity should be taken into account when the instant case and the judgment were rendered at the same time for a violation of the Wastes Control Act. This is favorable to the Defendant.

In addition, the punishment as ordered shall be determined in consideration of the circumstances of the crime of this case, the circumstances after the crime of this case, the age, character and conduct, environment, etc. of the defendant, and the various sentencing conditions shown in the records and pleadings of

2. Defendant 2

The Defendant has been committing the instant crime for a long time, and the quality of the crime is very high due to the quantity of wastes dumped without permission, and has not yet been properly recovered from damage. Environmental crimes are not only continuous and extensive occurrence of damage but also need to be strictly punished because it is not easy to recover damage. This is the circumstances unfavorable to the Defendant.

However, the defendant shows his attitude to recognize and reflect the crime of this case, and there is no criminal conviction for the defendant. This is the circumstances favorable to the defendant.

In addition, the punishment as ordered shall be determined in consideration of the circumstances of the crime of this case, the circumstances after the crime of this case, the age, character and conduct, environment, etc. of the defendant, and the various sentencing conditions shown in the records and pleadings of

The summary of this part of the facts charged is as stated in Article 3-A. 1(a) of the Criminal Procedure Act, but as stated in Article 3-3-A. 2(b), since this part of the facts charged falls under a case where there is no proof of the facts charged, it shall be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act, but since the defendant did not consent to the public announcement of the verdict of not guilty, the purport of the

Judges Cho Jae-ho (Presiding Judge)

1) In light of the legislative purpose, contents, and purport of the National Technical Qualifications Act, in a case where an individual statute regulating a business of the field of national technical qualification provides that a person who has acquired the relevant national technical qualification must be equipped with certain technical personnel who is essential to obtain permission, authorization, registration, or license for such business, or where an enterpriser, etc. provides that a person who has acquired the relevant national technical qualification must be appointed, appointed, or employed without performing his/her duties in accordance with the relevant national technical qualification under the premise that it is essential for him/her to conduct such business in order to maintain and maintain industrial safety, manage facilities, operate facilities, prevent disasters, etc., it is reasonable to interpret that a national technical qualification holder’s act constitutes an act of lending or borrowing a national technical qualification certificate prohibited under Articles 26(3)1 and 15(2) of the National Technical Qualifications Act, if the national technical qualification holder, without performing his/her duties in accordance with the relevant national technical qualification, is actually appointed, appointed, or employed by the person who has the relevant national technical qualification under the said method.

2) For example, Article 72 of the Certified Judicial Scriveners Act provides that “A certified judicial scrivener who lends his/her certificate of registration to another person in violation of Article 21(2) shall be punished by imprisonment with prison labor for not more than five years or by a fine not exceeding 10 million won,” and Article 87 of the Medical Service Act provides that “a person who lends his/her license in violation of Article 4(4) shall be punished.”