[1] The scope of the act of changing the use of a building, which is subject to punishment under the Building Act, and whether the statute of limitations for the crime of violating the Building Act, in a case where a building continues to be used for other purposes without permission (negative)

[2] In the event that a law applicable to a continuous crime has been amended, the applicable law applicable to the continuous crime shall apply at the time

[3] The case holding that since the facts charged for the alteration of use and use without permission under the Building Act, the decision of unconstitutionality of the Building Act between the period of the act and the amendment of the Building Act, the invalidation and transitional provisions of the penal regulations due to the invalidation and transitional provisions of the Building Act, the applicable laws should be evaluated as independent act at each time, and the judgment of not guilty or not guilty

[1] An act of altering the purpose of use of a building subject to punishment where a building is not permitted or reported under the Building Act (amended by Act No. 5895, Feb. 8, 1999; the Building Act was amended by Act No. 5895, and the alteration of purpose of use of a building was converted from the permission system to the reporting system) includes not only an act of changing the purpose of use in a tangible manner, but also an act of using a building for other purposes without obtaining permission or filing a report. As such, an act of using a building for other purposes without obtaining permission or filing a report has the nature of continuous crime, and thus, there exists a tentative illegal state as long as it continues to use it for other purposes without permission or a report

[2] In general, in cases of continuous crimes, the Act should be applied at the time when the act of enforcement is terminated. However, in cases where the Act has a transitional provision that "in applying penal provisions to acts before the enforcement of the amended Act, the previous provision shall apply." The amended Act shall be applied to acts before the enforcement of the amended Act, and the amended Act shall be applied to the subsequent acts.

[3] The case holding that since the facts charged for the alteration of use and use without permission under the Building Act, the decision of unconstitutionality of the Building Act between the period of the act and the amendment of the Building Act, the invalidation and transitional provisions of the penal provisions due to the invalidation and transitional provisions of the Building Act, it shall be evaluated as independent act at each time, the applicable laws should be specified, and the judgment of not guilty

[1] Articles 8, 14, and 78 of the former Building Act, Article 14 of the former Building Act (amended by Act No. 5450 of Dec. 13, 1997), Article 14 of the former Building Act (amended by Act No. 5450 of Dec. 13, 1997), Article 14 of the former Building Act (amended by Presidential Decree No. 15802 of May 23, 1998), Article 14 of the former Building Act (amended by Act No. 5895 of Feb. 8, 199), Article 16 of the former Building Act (amended by Presidential Decree No. 16284 of Apr. 30, 199), Article 14 of the former Building Act (amended by Act No. 1659 of Apr. 19, 199), Article 249, and Article 252 of the former Building Act / [2] Article 98 of the former Building Act (amended by Presidential Decree No. 154948 of the Act

[1] Supreme Court Decision 89Do2525 delivered on April 13, 1990 (Gong1990, 1106), Supreme Court Decision 90Do2860 delivered on March 27, 1991 (Gong1991, 1316), Supreme Court Decision 92Do1647 delivered on September 22, 1992 (Gong1992, 3042), Supreme Court Decision 92Do322 delivered on April 13, 1993 (Gong193, 1428), Supreme Court Decision 95Do1351 delivered on August 25, 195 (Gong195Ha, 3312), Supreme Court Decision 94Do29498 delivered on December 24, 1995 (Gong195, 1929, 1948Hun-Ba3294 delivered on December 24, 1996)

Defendant

Prosecutor

Daejeon District Court Decision 2000No2360 delivered on July 5, 2001

The judgment of the court below is reversed, and the case is remanded to Daejeon District Court Panel Division.

1. Summary of the judgment of the court below

The court below held that the defendant used part of 1,014.52 square meters of 2,856.41 square meters in the Dong-dong area in Daejeon-dong, Daejeon as a manager of 27,029.34 square meters in total, 44 square meters in underground and 18 stories in the ground, without reporting to the competent authority, and that the defendant changed the use of 1,014.52 square meters in the above 4 stories in the above building to a management office around August 1995 as part of 1,125 square meters in the above 1,014.52 square meters in the above building into a management office, the above crime was established at the time of the alteration of the statute of limitations from 30 years in accordance with Articles 78(1), 8(1) and 14 of the former Building Act (amended by Act No. 5450, Dec. 13, 197), and the crime was established under Article 250 of the Criminal Procedure Act.

2. The judgment of this Court

A. However, an act of altering the purpose of use of a building subject to punishment where a building is not permitted or reported under the Building Act (amended by Act No. 5895 of Feb. 8, 1999) includes not only an act of changing its purpose but also an act of using it for other purposes (see Supreme Court Decisions 89Do2525, Apr. 13, 1990; 90Do2860, Mar. 27, 1991; 90Do2860, Mar. 27, 1991). Since an act of using a building for other purposes without obtaining permission or filing a report has the nature of a continuous crime, it still exists in a provisional illegal state where it continues to use it for other purposes without obtaining permission or filing a report (see Supreme Court Decision 9Do304, Mar. 22, 1996; 205Do304, Mar. 24, 196).

B. However, with respect to the Defendant’s act of violating the Building Act, the lower court determined that the Defendant was prosecuted for violating Articles 78(1), 8(1), and 14 of the former Building Act (amended by Act No. 4381, Dec. 13, 1997); however, according to the indictment written on May 31, 200, according to the indictment written on the indictment written on the indictment written on May 31, 200, the term “Building Act” is only stipulated as “the Building Act”, and it does not specify which time is the building. On the other hand, with respect to the provisions of the above Building Act, there was a decision of unconstitutionality of the Constitutional Court and several amendments to the Act several times from the time of the commencement of the act of using without permission of this case until the prosecution of this case was instituted, the lower court should specify the laws to be applied by each time through the name of the prosecutor, etc., and to determine whether the Defendant is guilty or not under each Act.

In other words, Article 78 (1) and Article 14 of the former Building Act (amended by Act No. 5450 of Dec. 13, 197) (amended by Act No. 4381 of May 31, 1991) (amended by Act No. 4381 of May 29, 199), which provides that "No. 4 of the former Building Act (amended by Act No. 5450 of Dec. 13, 1997)" and "No. 9 of the former Building Act (amended by Act No. 1945 of Feb. 4, 1999) were unconstitutional, and the above provision was amended by Act No. 194 of May 14, 199 and No. 198 of the Building Act (amended by Act No. 5497 of Feb. 9, 199).

C. Meanwhile, the act of altering the purpose of use and use of this case, which has the nature of continuous crime, should be evaluated as independent act due to the invalidation and transitional provisions of the above penal provision, but since the act of changing the purpose of use in this case was charged as a whole as a single crime, the entire judgment of the court below shall

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon Jae-sik (Presiding Justice)