(영문) 대구지방법원 2016.07.13 2015노3947 | 리걸엔진

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(영문) 대구지방법원 2016.07.13 2015노3947

골재채취법위반

Text

The judgment of the court below is reversed.

Defendants shall be punished by a fine of KRW 9,000,000.

Defendant

A The above fine shall be imposed.

Reasons

1. Summary of grounds for appeal;

A. The outcome of the extraction of aggregate calculated on the basis of the incorrect method of the public official responsible for mistake of fact is not reliable, and the extracted aggregate was sold in KRW 25,000, not only for KRW 15,000 per cubic meter but also for KRW 39,164,00,00, as well as for KRW 39,164,000, which was paid by the defendant to a business operator, should be calculated on the basis of the remainder after deducting the cost of dredging; however, the court below applied the unit price per cubic meter to KRW 15,00,000, and did not deduct the cost of relocating the dredging vessel, and found the defendants guilty of the charge of this case by deeming the result calculated on the basis of the total amount of the cost of extraction of aggregate as the amount of extraction of aggregate by considering the defendants' aggregate.

B. Each sentence sentenced by the lower court (each fine of KRW 10 million) is too unreasonable.

2. Determination

A. Before making ex officio judgment on the grounds for appeal by the Defendants, the lower court applied Articles 49 subparag. 5 and 25 of the Aggregate Extraction Act (Defendant A) and Articles 51 main text, 49 subparag. 5 and 25 of the Aggregate Extraction Act (Defendant limited partnership company B) to the facts constituting the instant crime.

However, Article 49 Subparag. 5 of the current Aggregate Extraction Act and the main text of Article 25 (a statutory penalty of not more than three years or a fine not exceeding 30 million won) were amended by Act No. 12970, Jan. 6, 2015, and enforced on July 7, 2015. As such, the current Aggregate Extraction Act cannot be applied to the above criminal facts committed by the Defendants prior to the enforcement of the current Aggregate Extraction Act, and Article 49 Subparag. 5 of the former Aggregate Extraction Act (amended by Act No. 12970, Jan. 6, 2015) and Article 25 of the former Aggregate Extraction Act (amended by Act No. 12970, Jan. 6, 2015) should be applied.

In this respect, the judgment of the court below is no longer maintained.

B. The judgment of the court below on the assertion of mistake of facts is reversed ex officio.

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