208No105 Violation of the Special Act on the Establishment of Jeju Special Self-Governing Province and the Creation of Free International City

1. Kim○ Award (52 years old, over 52 years old);

2. Kim Jong-chul (68 years old, over 20 years old);

Defendant ○○ and Prosecutor

Mak-hee

Jeju District Court Decision 2007 Godan1539 Decided January 28, 2008

June 12, 2008

All appeals filed against the Defendants by Defendant ○ Kim and by the Prosecutor are dismissed.

1. Summary of grounds for appeal;

A. The court below erred by misapprehending the legal principles on the concept of natural stone in the judgment of the court below.

The three points of the decision of the Defendants attempted to take out the rocks that the Defendant collected with lawful permission for gathering was processed as a stone for construction, and the remaining rocks were not natural rocks under Article 3 subparag. 5 of the Jeju Special Self-Governing Province Ordinance on the Natural Environment Management of Jeju Special Self-Governing Province, which was enacted pursuant to Article 296 of the "Special Act on the Establishment of Jeju Special Self-Governing Province and the Development of Free International City". Nevertheless, the lower court found the Defendant guilty of the instant charges by misapprehending the legal doctrine on the concept of natural rocks.

(2) The lack of criminal intent

In light of the fact that it is difficult for relevant public officials to make accurate decisions to the extent that there are differences in opinions with regard to whether the instant stone 3 point is natural stone, and that the Defendant was believed not to be preserved resources, as it is crushed by cryp aggregate, etc., the Defendant did not have any intent to commit the instant crime.

(b) Prosecutors;

Each sentence of the lower court against the Defendants (the suspension of sentence of a fine of one million won or more, and the suspension of sentence of a fine of 400,000 won or more: the suspension of sentence of a fine of 400,000 won or more) is unfair

2. Determination

A. Judgment on the assertion of misapprehension of the legal principles on Defendant Kim Jong-○, etc. (1) misunderstanding of the legal principles on the concept of natural stone

Article 358 (4) of the Special Act on the Establishment of Jeju Special Self-Governing Province and the Development of Free International City (hereinafter referred to as the "Act") provides that the act of trading resources without obtaining permission under the provisions of Article 296 (5) of the Act or removing such resources out of Jeju Self-Governing Province shall be punished. Meanwhile, Article 296 (1) of the Act provides that the Governor may designate resources prescribed by Provincial Ordinance among rare animals and plants living in Jeju Self-Governing Province and natural resources within the territory of Jeju Self-Governing Province (hereinafter referred to as "Preservation resources"), if deemed necessary to protect the natural resources of Jeju Self-Governing Province, and Article 358 (5) of the Act provides that the person who intends to purchase or sell conservation resources within Jeju Self-Governing Province or take such resources out of Jeju Self-Governing Province shall obtain permission from the Governor, and Article 296 (5) of the Act provides that the act of removing rocks from Jeju Self-Governing Province shall be deemed to be the most natural resource conservation and conservation of rocks within 10m of the natural resources.

In the instant case, the health unit, 3 points of the instant stone that the Defendant intended to take out, cut only one side from the original stone collected from tin acid by the Defendant who operates the company producing stone for construction purposes, and the fact that the Defendant remains naturally unprocessed except the external cutting part, and the longer length of the 70cm to 150cm or 150cm of the longer straight line of the instant stone 3 point of the instant stone, it is reasonable to deem that the instant stone 3 point of the instant case maintains the form and value of natural stone externally even if she was cut from tin, and the straight line of which is not less than 10cm, and falls under the natural stone that is the preservation resources provided for in the Act and the instant ordinances (it cannot be deemed that the designation of preservation resources was cancelled because the Defendant collected 3 points of the instant stone with lawful permission for gathering them).

In the same purport, the judgment of the court below which convicted the Defendant of the facts charged of this case is just, and there is no error of law as alleged by the Defendant

(2) The lack of criminal intent

In light of the following circumstances indicated in the record, the Defendant attempted to go beyond 3 points in the instant case upon the request of Kimcheon-type directly by the Defendant, and attempted to go beyond 3 points in the instant case to the Dong in the process of removal, and considering the fact that 3 points in the instant stones were living in the form and value of natural stone in appearance, the Defendant may sufficiently recognize the Defendant’s criminal intent to commit the instant crime. Accordingly, the Defendant’s counterclaim to the contrary purport is without merit.

B. Judgment on the prosecutor's assertion of unfair sentencing

It is necessary to severely punish the act of unauthorized removal of natural stone, which is a conservation resource with regional characteristics of Jeju Self-Governing Province. However, in light of the following factors: three points of the instant case were lawfully collected and processed for stone; the Defendants recognized objective facts; the Defendants did not have any criminal record; the Defendants appeared to have no criminal record; and other factors to be considered in light of all the sentencing conditions in the instant case, such as the Defendants’ age, character, character, and environment, the sentence of the lower court is too uneasible and unreasonable; thus, the Prosecutor’s aforementioned assertion is without merit.

3. Conclusion

Therefore, since all appeals against the defendants by the defendant Kim ○ and the prosecutor's appeal are without merit, they are dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Park Jong-dae

Judges Cha Jin-kin

Judges Kim Jae-han