Defendant 1 and one other

Defendants and Prosecutor

6. The records of prosecution (prosecutions) and the records of prosecution (public trial)

Law Firm Sejongwon, Attorney Jeong Young-ju

Suwon District Court Decision 2016Gohap3179 Decided December 7, 2016

All appeals by the Defendants and the Prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Defendants

(1) misunderstanding of facts and misapprehension of legal principles

Around August 12, 2016, the lower court found Defendant 1 guilty of violating the Act on Special Measures for Designation and Management of Areas of Restricted Development, even if Defendant 1 did not comply with the aforementioned corrective order in a procedural manner, as it did not constitute a violation of the Act on Special Measures for Designation and Management of Areas of Restricted Development, and thus, found Defendant 1 guilty of violating the Act on Special Measures for Designation and Management of Areas of Restricted Development, among the facts charged against the Defendants.

(2) Unreasonable sentencing

The punishment sentenced by the court below against the defendants (defendant 1: imprisonment with prison labor for four months, with prison labor for four months, and fines for twenty million won for defendant 2) is too unreasonable.

(b) Prosecutors;

The sentence imposed by the court below against the defendants is too uneasible and unfair.

2. Determination

A. Judgment on the misunderstanding of facts and misapprehension of legal principles by the Defendants

If an administrative disposition is revoked by an ex post facto administrative litigation procedure, the administrative disposition becomes retroactively effective at the time of the disposition, and it is reasonable to view that the obligation to obey the administrative disposition has become final and conclusive, but the effect of the administrative disposition is not denied without permission for the reason of the defect, except in the case where there is a reason to deem that the defect in the administrative disposition is null and void as it is grave and obvious even if it is unlawful (see, e.g., Supreme Court Decision 98Do4239, Feb. 5, 199). However, the validity of the administrative disposition cannot be denied unless it is revoked (see, e.g., Supreme Court Decision 2006Da83802, Mar. 16, 2007).

In the instant case, even if the Defendant did not give prior notice or opportunity to present opinions as prescribed by the Administrative Procedures Act prior to the issuance of the corrective order to restore the original state to the original state as alleged by the Defendant, it is difficult to readily conclude that such procedural defect is serious to the extent that the said corrective order would be null and void. Furthermore, in the relevant administrative appeals procedure, the examination is conducted as to whether there is urgency in the public welfare, which makes it possible to omit prior notice prior to, and giving opportunity to present opinions in, the sedi administrative disposition in the relevant administrative appeals procedure. Thus, the validity of the said corrective order cannot be denied as it is evident that the procedural defect is evident.

Therefore, the judgment of the court below which found the Defendants guilty of violating the Act on Special Measures for Designation and Management of Areas of Restricted Development due to the Defendants’ failure to implement a corrective order for restoration to the original state is just, and there is no error of law by misunderstanding facts or misunderstanding legal principles, which affected the conclusion of the judgment.

B. Determination on the assertion of unfair sentencing by the Defendants and the prosecutor

In light of the fact that Defendant 1 committed each of the crimes of this case during the period of suspension of the execution of the same kind of crime without being sentenced to three times for the same crime or criminal punishment, and there is a high possibility of criticism, and Defendant 1’s operation of waste disposal business without reporting it to the competent authorities, and continues running away from the illegal state such as installing waste disposal facilities or placing scrap iron at will without reporting it to the competent authorities, it is doubtful that there is a doubtful doubt as to whether there is the conditions of the opening.

However, there are circumstances that may be considered as favorable circumstances to the Defendants, such as the removal of facilities installed by the Defendant and collection of scrap metal, and the violation of the Wastes Control Act by Defendant 1 on July 2, 2016 is in concurrent crimes under the latter part of Article 37 of the so-called Criminal Act with the violation of the Act on Special Measures for Designation and Management of Areas of Restricted Development and the violation of the Act on Special Measures for Designation of Areas of Restricted Development and the violation of the Act on Special Measures for Management

In addition, considering the following factors: Defendant 1’s age, character and conduct, environment, background of each of the instant crimes, circumstances before and after the instant crime, etc., and all of the sentencing conditions indicated in the instant records and arguments, the lower court’s sentence imposed on the Defendants is too heavy or unreasonable since it is within the proper sentencing discretion. Therefore, the Defendant and the Prosecutor’s assertion in this part are without merit.

3. Conclusion

Therefore, the appeal by the defendants and the prosecutor is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Cho Sung-sung (Presiding Judge) regularly Kim Jong-sung