The judgment of the court below is reversed.

Defendants shall be punished by a fine of KRW 800,000.

The above fine shall not be paid by the Defendants.

Summary of Defendants’ Appeal

A. The misunderstanding of facts (hereinafter “instant container”) was established by Defendant A, and Defendant B did not conspired to install the instant container. Even if Defendant B participated in the installation of the instant container, Defendant A participated in the installation of the instant container.

Although Defendant B was merely an aiding and abetting, the lower court found Defendant B to have installed the instant container in collusion with Defendant A, the lower court erred by misapprehending the legal doctrine.

B. The lower court erred by misapprehending the legal doctrine as follows.

1) As to the violation of the Building Act, the instant container is not “building” under Article 2(1)2 of the Building Act, but “temporary building” under Article 20 of the Building Act, etc., the lower court found the Defendant guilty of this part of the facts charged by applying Articles 111 subparag. 1 and 14(1)5 of the Building Act by deeming the instant container as a building.

2) As to the violation of the National Land Planning and Utilization Act, the construction of the instant container constitutes “extension” as prescribed by Article 56(4)2 of the National Land Planning and Utilization Act without obtaining permission for development activities. However, the lower court convicted the Defendants of this part of the facts charged that the Defendants installed the instant container without obtaining permission from the competent administrative agency.

(c)

The punishment sentenced by the court below to the defendants (the fine of KRW 2 million, and the fine of KRW 3 million) is too unreasonable.

2. Determination

A. Before making ex officio decisions on the grounds for appeal by the Defendants, we examine ex officio prior to the judgment on the grounds for appeal by the Defendants, and the Prosecutor changed the facts charged in the instant case at the trial as follows.