[1] Whether a person who fails to install a facility for restraining dust under Article 57 subparag. 4 of the former Clean Air Conservation Act includes a person who fails to operate such facility (affirmative)

[2] Whether Article 57 subparag. 4 of the former Clean Air Conservation Act punishs a person who fails to install a fugitive dust control facility, etc., and criminal negligence is also punished (affirmative)

[3] The case holding that Article 57 subparagraph 4 of the former Clean Air Conservation Act constitutes a violation of Article 57 subparagraph 4 of the former Clean Air Conservation Act in a case where a place of business that generates dust was installed with automatic sponsor facilities, which are automatic sponsoring facilities

[1] Articles 28(1) (see current Article 43(1) and 57 subparag. 4 (see current Article 92 subparag. 5) of the former Clean Air Conservation Act (amended by Act No. 8404 of Apr. 27, 2007) / [2] Articles 28(1) (see current Article 43(1)) and 57 subparag. 4 (see current Article 92 subparag. 5) of the former Clean Air Conservation Act (amended by Act No. 8404 of Apr. 27, 2007) / [3] Articles 28(1) (see current Article 43(1)) and 57 subparag. 4 (see current Article 92 subparag. 5) of the former Clean Air Conservation Act (amended by Act No. 8404 of Apr. 27, 2007)

[2] Supreme Court Decision 92Do1136 delivered on September 10, 1993 (Gong1993Ha, 2832)

Defendant 1 and one other

Defendants

Law Firm Lee & Lee, Attorneys Park Jeong-hun et al.

Incheon District Court Decision 2008No530 Decided July 25, 2008

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the ground of appeal No. 1 and the ground of appeal No. 2 concerning the principle of prohibition of analogical interpretation

A penal provision shall be strictly interpreted and applied in accordance with the language and text, and shall not be excessively expanded or analogically interpreted in the direction unfavorable to the defendant. However, a teleological interpretation in light of the legislative intent and purpose, legislative history, etc. of the law shall not be excluded in the interpretation of the penal provision unless it goes beyond the ordinary meaning of the legal text (see, e.g., Supreme Court Decisions 2002Do2363, Jan. 10, 2003; 2005Do6525, May 12, 2006).

According to the reasoning of the judgment below, the court below rejected the defendants' assertion that the installation of facilities to control fugitive dust in light of the legislative purport of Article 28 (1) and Article 57 subparagraph 4 of the former Clean Air Conservation Act (amended by Act No. 8404 of Apr. 27, 2007, hereinafter the same) includes the operation of facilities to control fugitive dust. Thus, the court below rejected the defendants' assertion that the defendants' failure to operate automatic wheeled facilities does not constitute a violation of Article 57 subparagraph 4 of the former Clean Air Conservation Act even if the defendants failed to operate automatic wheeled facilities.

Examining the record in light of the above legal principles, in light of the legislative purport and purpose of Article 57 subparagraph 4 of the former Clean Air Conservation Act punishing a person who fails to install facilities to control fugitive dust in violation of Article 28 (1) of the former Clean Air Conservation Act, it is reasonable to view that a person who installed facilities to control fugitive dust but fails to operate such facilities violates the above provision. Therefore, the judgment of the court below to the same purport is just, and there is no violation of the legal principles as to the clarity principle of penal law or the prohibition of analogical interpretation as otherwise alleged in the ground of appeal.

2. As to the ground of appeal No. 2, as to the misapprehension of legal principle as to the violation of the principle of liability

Considering the legislative purpose of Article 28(1) of the former Clean Air Conservation Act and the purport of relevant provisions for the purpose of enabling all citizens to live in a healthy and comfortable environment by preventing danger and injury to public health and environment due to air pollution and by managing and preserving the atmospheric environment in an appropriate and sustainable manner, the provisions of Article 57 subparag. 4 of the former Clean Air Conservation Act, which intend to punish a person who fails to install facilities to control fugitive dust or to take necessary measures, should be interpreted as punishing a person who fails to install facilities or take necessary measures, as well as intentional crimes, and a person who fails to install the above facilities or take necessary measures without recognizing such matters due to negligence, should be concurrently punished (see Supreme Court Decision 92Do136, Sept. 10, 193, etc.).

The lower court, based on its evidence, acknowledged the facts as indicated in its reasoning, and rejected the Defendants’ assertion to the effect that, although there were circumstances to be taken into account as the Defendants were unable to operate the above facilities due to the failure of the automatic three-wheeled facilities of this case, in light of the purpose of the enactment of the former Clean Air Conservation Act, it is difficult to avoid punishment so long as the control facilities are not in operation at the place of business producing scattering dust, and that the above punishment provision should be applied only to cases where the punishment provision on the grounds that the above punishment provision does not operate the above facilities intentionally and finally causes final illegality to the extent that it would be identical with the act of not installing the facilities.

Upon examining the records in light of the above legal principles, even if the defendants were unable to operate the facility of this case due to the breakdown of the facility of this case, barring special circumstances, it cannot be deemed that there was no negligence in the failure to operate the facility of this case. Thus, although the court below's reasoning is somewhat inappropriate, the conclusion that the defendants cannot be exempted from punishment pursuant to the above punishment provision is just, and there is no error in the misapprehension of legal principles in violation of the principle of liability for act as otherwise alleged in the ground of appeal.

3. As to the third ground for appeal

The court below found the facts as stated in its reasoning based on its employed evidence, and found that the defendants violated Article 28 (1) of the former Clean Air Conservation Act because they failed to operate automatic three-wheeled facilities, which are major facilities for restraining scattering dust, despite the fact that the defendants did not operate automatic three-wheeled facilities, and reported that they will install and operate all automatic three-wheeled facilities and mobile sprinkler facilities, and completed the cleaning scope, efficacy, and mobile sprinkler facilities of automatic three-wheeled facilities and passed roads, the court below determined that it is not sufficient to recognize that the defendants used the automatic three-wheeled facilities without operating the automatic three-wheeled facilities and used all the two-dimensional facilities originally reported to the effect of suppressing scattering dust generation, and therefore it is difficult to deem that the defendants had "necessary measures" in relation to restraining dust generation under the above provisions.

As determined by the court below, it is reasonable to view that the defendants violated Article 28 (1) of the former Clean Air Conservation Act inasmuch as they did not operate automatic three-wheeled facilities without installing facilities that are equal to or superior to the automatic three-wheeled facilities, so long as they did not operate automatic three-wheeled facilities, they are in violation of the above Article 28 (1) of the former Clean Air Conservation Act. Therefore, although the court below's reasoning is not appropriate, the conclusion that the defendants are unable to be exempted from punishment pursuant to the above penal provisions

4. As to the fourth ground for appeal

The court below, based on the reasoning of the judgment of the court of first instance, acknowledged the fact that the defendant Gyeongnam Company (hereinafter "Gyeongnam Company") reported the original construction period from February 4, 2005 to August 11, 2008, and that five companies, including the defendant Gyeongnam Company, jointly use and manage the instant automatic three-wheeled facilities from March 2007 to August 11, 2008, the five companies, including the defendant Gyeongnam Company, were to jointly use and jointly use the instant automatic three-wheeled facilities, and the court below determined that if the defendant Gyeongnam Company was in the management of the above three-wheeled facilities at the time of the instant case and the civil engineering works of the defendant Gyeongnam Company were not completely completed, punishment may not be exempted on the ground that the defendants did not destroy the earth at the time of the instant case.

Examining the reasoning of the judgment below in light of the records, we affirm the fact-finding and judgment of the court below as just, and there is no violation of the legal principles as to the subject of the above punishment provision as otherwise alleged in the ground of appeal.

5. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)