Defendant

Defendant

Man-Jina

Attorney Gangnam-gu

Cheongju District Court Decision 2006Ma1280 Decided November 17, 2006

The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

The act of the defendant filled up and filled up this case for the purpose of creating farmland constitutes an act of changing the form and quality of land for farming or a minor act that can be performed without permission of the head of the Si/Gun, and it is unnecessary to obtain permission from the competent authority, and even if not, the act of the defendant is due to a mistake in law, and it constitutes a case where there is a justifiable reason for causing such a mistake. Thus, the judgment below which found the defendant guilty is unjust.

2. Determination

A. As to the assertion that permission is unnecessary as a change in the form and quality of land for farming

Article 56(1)2 of the National Land Planning and Utilization Act (hereinafter “National Land Act”) and Article 51 subparag. 3 of the Enforcement Decree of the same Act provide that where the form and quality of land is changed by means of changing the form and quality of land, namely, cutting, filling, leveling, or paving, or reclaiming public waters, the permission of the competent authority shall be obtained. However, the exception is provided in the case of changing the form and quality of land for farming. In this context, the change of the form and quality of land for farming is reasonable to interpret that the change of the form and quality of farmland is made in order to enhance the productivity of farmland, such as crop cultivation in the farmland for which the creation has already been completed or a simple work of suspending land or small scale, etc., to enhance the land productivity. Thus, even if the land is filled up from the intention of the landowner, etc. to cultivate the land, if it is up to the extent that the fundamental function of the land is to be changed or damaged, permission from

However, the Defendant had, for a five-day period, buried and filled up the instant maintenance of approximately 11,166 square meters at a height of one meter and developed it as farmland. The Defendant’s act does not constitute a change in the form and quality of land for cultivation as seen above, and therefore, permission for development pursuant to the National Land Act is necessary. Therefore, this part of the Defendant’s assertion is without merit.

B. As to the assertion that the permission of the competent authorities is unnecessary as minor acts

The Defendant is merely creating land suitable for cultivation for the purpose of efficient utilization of land because the extent of 1/3 of the maintenance of this case had already been cultivated at the time, etc., which is already lost its function as a maintenance, and thus, constitutes an unnecessary minor act. However, there is no evidence to acknowledge that the maintenance of this case has already lost its function. Moreover, as the Defendant asserts, the grounds for the maintenance of this case do not fall under any of the minor acts that need to be permitted by the competent authorities under Article 56(4)3 of the National Land Act and Article 53 subparag. 3 of the Enforcement Decree of the same Act, and thus, the Defendant’s assertion on this part is groundless.

C. As to the assertion of error of law

Article 16 of the Criminal Act provides that his act of misunderstanding that his act does not constitute a crime under Acts and subordinate statutes shall not be punishable only when there is a justifiable ground for misunderstanding. However, it does not mean a simple legal site, but it is generally a crime, but in his special circumstances, if there is a justifiable ground to mislead misunderstanding that his act does not constitute a crime under Acts and subordinate statutes, it shall not be punishable. As the defendant claims, although he buried part of the maintenance of this case in around March 2005 and restored it to the original state as a civil petition of nearby residents, he did not receive any administrative disposition, but he does not receive any change in the form and quality of land for cultivation in the National Land Act, etc., and even if the defendant was subject to the disposition of disuse of agricultural infrastructure for the maintenance of this case by the head of Cheongju-si, which is subject to the disposition of disuse of agricultural infrastructure, this part of the defendant's assertion is without merit.

3. Conclusion

Therefore, the defendant's appeal 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 Oba (Presiding Judge) Lee Jin-jin