[1] Whether a person who intends to install a “road” under the former Management of Mountainous Districts Act shall file a report thereon (affirmative in principle)

[2] The meaning of "change to form and quality of a mountainous district" under the former Management of Mountainous Districts Act

[3] In a case where the Defendant was indicted for violation of the former Management of Mountainous Districts Act on the grounds that he conspiredd with Party A and opened a road on the forest land owned by Party A without reporting thereon, the case affirming the judgment below convicting Party A on the ground that Party A cannot open a road without reporting on the ground that it was not included in a forest management plan authorized for forest land under the former Forestry Act, since Party A’s establishment of a road on the forest land under the same Act

[1] Article 2 subparag. 2, Article 15(1)1 and (2), Article 5 subparag. 1 of the former Management of Mountainous Districts Act (amended by Act No. 8283, Jan. 26, 2007); Article 18(2) [Attachment Table 3] subparag. 1(f) of the former Enforcement Decree of Mountainous Districts Management Act (amended by Presidential Decree No. 20205, Jul. 27, 2007; see Article 18(2) [Attachment Table 3] subparag. 1(a) of the former Enforcement Decree of Mountainous Districts Management Act (amended by Act No. 8283, Jan. 26, 2007); Article 2 subparag. 2 of the former Enforcement Decree of the Mountainous Districts Management Act (amended by Act No. 8283, Jan. 26, 2007; see Article 30 of the Criminal Act; Article 15 subparag. 15(1) and (6) of the current Enforcement Decree of the Creation and Management of Forest Resources Act)

[2] Supreme Court Decision 2002Do21 decided Apr. 23, 2002 (Gong2002Sang, 1304) Supreme Court Decision 2001Do2573 decided Jun. 10, 2003 (Gong2003Ha, 1554)

Defendant

Defendant

Attorney Gangwon-won et al.

Suwon District Court Decision 2009No597 decided January 21, 2010

The appeal is dismissed.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Article 2 subparag. 2 of the former Management of Mountainous Districts Act (amended by Act No. 8283, Jan. 26, 2007; hereinafter the same shall apply) provides that the term "conversion of a mountainous district" means afforestation, forestation, extraction or gathering of earth and rocks, and other use of a mountainous district for purposes other than the production of forest products prescribed by Presidential Decree, or changing the form and quality of the mountainous district for such purpose. Article 15(1)1 of the Act provides that a person who intends to convert a mountainous district shall report to the Minister of the Korea Forest Service for the installation of facilities related to forest management, such as forest roads and forest management managers, and pursuant to delegation of Article 15(2) of the Act, Article 18(2) [Attachment 3] subparag. 1 (f) of the former Enforcement Decree of the Mountainous Districts Management Act (amended by Presidential Decree No. 20205, Jul. 27, 2007; hereinafter the same shall apply) provides that a person who intends to convert a mountainous district into the form and quality of the mountainous district shall be changed.

In light of the above legal principles and records, the court below found the defendant guilty of violating the Management of Mountainous Districts Act by recognizing that the defendant conspired with co-defendant 2 of the court below without reporting it to the Administrator of the Korea Forest Service, although the defendant should report it to the Administrator of the Korea Forest Service. In light of the above legal principles and records, the judgment of the court below is just and acceptable, and contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles concerning the scope of conversion of mountainous district and the cases where conversion of mountainous district can be conducted without reporting it, or by exceeding the bounds of the principle

Meanwhile, Article 8(1) of the former Forestry Act [amended by Article 2 of the Addenda to the Creation and Management of Forest Resources Act (amended by Act No. 7678 of Aug. 4, 2005)] provides that "the head of a Si/Gun may approve a forest management plan at the request of a forest owner." Article 8(5) of the former Enforcement Decree of the Forestry Act (amended by Presidential Decree No. 2 of the Enforcement Decree of the Creation and Management of Forest Resources Act (amended by Presidential Decree No. 19639 of Aug. 4, 2006)] provides that, upon delegation of Article 8(5) of the same Act, a person who has obtained authorization of a forest management plan shall be deemed to have not been included in the above forest management plan but shall be deemed to have not been included in the forest management plan of this case as the forest management plan of this case. However, if he/she intends to do so, he/she shall be deemed to have legally included in the forest management plan of this case."

The ground of appeal on this part is without merit.

2. Regarding ground of appeal No. 2

According to the records, on the sixth trial of December 17, 2009, the court below approved the prosecutor's application for changes in the indictment of violation of the Creation and Management of Forest Resources Act due to the Defendant's unauthorized cutting of standing timber, etc. to the charges of violation of the Management of Mountainous Districts Act due to the establishment of a fluence on the charges of violation of the Management of Mountainous Districts Act. On January 7, 2010, the court below continued the date for pleading, given the Defendant and his defense counsel an opportunity to make statements on the changed facts charged, and declared the judgment on the date of trial of January 21, 2010. In light of the progress of the trial, the court below did not err by infringing the Defendant's right to defense or the right to be tried, thereby affecting the conclusion of the judgment.

This part of the grounds of appeal cannot be accepted.

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

Justices Kim Nung-hwan (Presiding Justice)