Defendant

Prosecutor

Oral incidentals, leaptables (public trial)

Attorney Park Young-ju (National Assembly)

Daejeon District Court Decision 2013MaMa176 Decided January 10, 2014

The appeal by the prosecutor is dismissed.

1. Summary of the grounds for appeal;

In accordance with the Act on the Management and Use of Livestock Excreta (hereinafter “former Livestock Excreta Act”) enacted by Presidential Decree No. 20290 on September 27, 2007 and the Enforcement Decree of the same Act, the Defendant, who installed and raises a dog in the competent authority prior to the designation of a person subject to reporting on the installation of a livestock excreta discharge facility (a person who installs a dog breeding facility with an area of not less than 60m2 square meters) and who is subject to reporting on the installation of a livestock excreta discharge facility, does not constitute “a person who intends to install a discharge facility” as a person subject to reporting under Article 11(3) of the Livestock Excreta Act, but does not fall under “a person who raises livestock by using a discharge facility installed without reporting,” added to Article 50 subparag. 3 of the Livestock Excreta Act (hereinafter “Revised Livestock Excreta Act”) as amended by Presidential Decree No. 10973 on July 28, 201, and thus, the judgment of the court below

2. Determination

Article 50 subparag. 3 of the former Livestock Excreta Act provides that “A person who installs a waste-generating facility without filing a report in violation of Article 11(3) shall be construed as “a person who intends to install or alter the reported matters in excess of the scale prescribed by Presidential Decree.” If a person who installed a waste-generating facility is not a person subject to reporting under the Livestock Excreta Act at the time of the installation of livestock excreta, the person cannot be construed as “a person who intends to install a waste-generating facility, who is subject to reporting under Article 11(3) of the former Act, even if the person becomes a person subject to reporting at the time of the revision of the relevant Act and subordinate statutes” (see Supreme Court Decision 2009Do776, Jul. 28, 201). Furthermore, even if the person who installed a waste-generating facility without filing a report in violation of the latter part of Article 50 subparag. 3 of the former Livestock Excreta Act extends the scope of punishment for “a person who raises livestock using a waste-generating facility without filing a report,” under the former part of Article 110.

According to the records, the judgment of the court below that the defendant did not constitute an object of punishment under Article 50 subparagraph 3 of the revised Livestock Excreta Act is justified, and there is no error of law in the misapprehension of legal principles as alleged in the grounds for appeal by the prosecutor. The prosecutor's assertion of inspection is without merit.

3. Conclusion

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

Judges Yellow Don-An (Presiding Judge)