(영문) 창원지방법원 2015.12.9.선고 2015노798 판결

According to Article 36(5) of the Creation and Management of Forest Resources Act and Article 43 subparag. 7 of the Enforcement Decree of the Forest Resources Act, where a person who has reported the temporary use of a mountainous district under Article 15-2(2) of the Management of Mountainous Districts Act lumbers standing trees, etc. accompanying the conversion of a mountainous district, he/she may fell standing trees, etc. without permission from the competent administrative agency under Article 36(1) of the Forest Resources

Meanwhile, pursuant to Article 15-2(2) of the Management of Mountainous Districts Act and Article 18-3(4) and attached Table 3-3(6) of the Enforcement Decree of the Management of Mountainous Districts Act, a report on temporary use of a mountainous district may be made only when the felling or digging of standing timber of the relevant mountainous district is not accompanied in cases of growing wild vegetables, etc., but a report on temporary use of a mountainous district may be made even when the average slope level of the relevant mountainous district is less than 259 and the cultivation area is less than 30,000 and when a forest management plan is authorized pursuant to Article 13 of the Forest Resources Act is accompanied by felling or digging of standing timber. Moreover, a report on temporary use of a mountainous district under Article 1

Since the Defendant obtained approval of a forest management plan (revision) and filed a report on temporary use of the relevant mountainous district in order to cultivate sacrhos, even if the smuggling market rejected the report on temporary use of the said mountainous district, the Defendant’s obligation to report temporary use of the mountainous district was fulfilled upon such notification.

Therefore, even without permission from the competent authorities, the Defendant could cut standing trees at will pursuant to Article 36(5) of the Forest Resources Act and Article 43(7) of the Enforcement Decree of the Forest Resources Act.

2. Determination

A. Relevant statutes

Attached Form "Related Acts and subordinate statutes" shall be as stated.

B. Facts of recognition

In full view of the evidence duly adopted and examined by the court below and this court, the following facts can be recognized.

1) On December 12, 2012, the Defendant obtained authorization for a forest management plan under the name of the J, which is a “natural forest care in the city” from the smuggling-si K, L, and M, which is the form of J on December 12, 2012, with respect to three parcels of land: (a) from December 2, 2012 to November 30, 202; and (b) from the Si-type of business, the Defendant obtained authorization for a forest management plan under the name of J, which is a “natural forest care in the city” (the written authorization for the forest management plan or the written authorization for the forest management plan is not stated, and if the Defendant intends to implement a forest project requiring deforestation, he/she shall report to the head of the Si/Gun/Gu on May 2, 2013); and (c) on May 2, 2013

2) On September 24, 2013, the Defendant received a report on temporary use under the J’s name, which is 24 months from the date of the report, as to the above K, L, M, and three parcels of forest (total area: 29,978m): In addition, the Defendant received the report on temporary use under the name of J, which is 24 months from the date of the report. The business plan attached to the said report on temporary use of forest stated as follows: “work method: the removal of obstacles to standing trees, etc. within the reported place, and the cultivation crof by planting with sacrine,” and the “Standing timber treatment plan: The tree treatment plan shall be handled without removal from the reported place to the place of report without removal, and the other trees shall be taken out for fire reduction or fire-fighting.”

3) As to the report on temporary use of mountainous districts under the J’s name, the smuggling market demanded two times to supplement “the business plan that reflects the felling of standing timber and the extraction plan, such as the matters authorized for the forest management plan, because the matters for the report on temporary use of mountainous districts are different,” but upon the submission of a reply under the J’s name stating the reason for refusal to supplement, the report on temporary use of mountainous districts was rejected on October 31, 2013.

4) On December 2013, the Defendant cut 652 standing timber on the ground of the said C, K, L, or M forest land.

C. Key issue of the instant case

At the time of the instant case, the Defendant did not obtain permission for cutting standing timber under Article 36(1) of the former Forest Resources Act (amended by Act No. 12415, Mar. 11, 2014; hereinafter the same) and the smuggling market rejected the report on the temporary use of mountainous districts under the J. As such, the issue of the instant case is whether the report should be deemed to exist, or whether the report should be deemed to exist solely on the receipt of the said report by the receipt of the report, by making the report requiring the acceptance of the report on temporary use of mountainous districts under Article 15-2(2) of the Mountainous Districts Management Act and Article 18-3(4) and 6 of the Enforcement Decree of the Mountainous Districts Management Act, as long as the report on temporary use of mountainous districts is not accepted as above.

D. Relevant legal principles

1) In light of the forms and contents of Articles 15-2(2) and 20 of the Management of Mountainous Districts Act, and Article 18-3(3) [Attachment Table 3-3] of the Enforcement Decree of the Management of Mountainous Districts Act, where a farmer, fisherman, etc. has reported the temporary use of a mountainous district for a certain period under the condition that he/she restores a mountainous district to a mountainous district to grow ornamental trees from a mountainous district, the average slope level is less than 30∑ and land area is less than 30,000 meters, or on condition that he/she restores it to a mountainous district to such mountainous district for a certain period, the head of a Gun, etc. shall accept such report unless he/she has reported the details of the report by fraud or other improper means, and shall not be deemed to have any discretion in accepting such temporary use of a mountainous district (see Supreme Court Decision 2011Du31987, Sep. 27, 2012). The aforementioned legal doctrine applies to the case of cultivation or death.

2) Many of the statutory provisions regarding reporting on temporary use of mountainous districts are related to public interest and requires a professional and comprehensive examination by an administrative agency. If a report alone is excluded from the examination of all the requirements, there is concern that serious infringement of public interest, damage to interested parties, and collapse of the overall regulatory system that intends to supervise private activities in advance through the authorization or reporting system prescribed by the relevant Acts and subordinate statutes. In addition, a person who intends to report temporary use of mountainous districts shall submit required documents that are mandatory to submit to the relevant Acts and subordinate statutes. It is inevitable to deem that an administrative agency accepting the said report will have the administrative agency examine the requirements prescribed by the relevant Acts and subordinate statutes. Therefore, it is justifiable to regard the so-called “report requiring acceptance” to be an administrative agency after examining the substantive requirements, barring any special circumstance (see Supreme Court en banc Decision 2010Du14954, Jan. 20, 201).

E. The judgment of this Court

1) Legal nature of the report on temporary use of the instant mountainous district

A) There are many cases where the distinction between a report which does not require acceptance and a report which needs acceptance is unclear, and there is no disagreement on the criteria to distinguish between both parties, but there is no uniform and uniform absolute criteria to distinguish between a report which does not require acceptance and a report which needs acceptance. In order to examine whether a legislative authority has determined what concept and scope or to grant any legal effect while regulating individual reports under the laws and regulations. Accordingly, it is inevitable to make a decision by comprehensively grasping the purport, content, and method of the relevant laws and regulations and regulations. In this regard, it is the most important standard to determine whether to explicitly grant an administrative authority the right to decide whether to accept a report.

On the other hand, in the absence of such express provision, the determination should be made by comprehensively taking into account the following factors: (i) whether there exists an explicit provision on acceptance in the law; (ii) whether a provision on acceptance in the law exists simultaneously with a report and registration; (iii) whether a registration system has been amended as a report system in the legal history; (iv) whether a report on installation of a facility has been requested with a provision on the effective time of the report; (v) whether a report is requested with a provision on requirements for facilities; (vii) whether a report is made by a six status transferee; (vii) whether an administrative penalty provision has a substantive examination provision other than a formal requirement as a requirement for acceptance; (viii) how the administrative penalty provision is an

In conclusion, when comprehensively examining the relevant provisions of the relevant statutes, depending on whether the report alone permits the commencement of the act in question and there is a certain reason to ex post facto supervisory control, or whether the report alone does not allow the act in question but allow the final control of the administrative agency, the former should be determined by its own complete report, and the latter should be determined by the report requiring acceptance.

B) As the instant report on temporary use of a mountainous district entails felling standing timber, the reporter is a farmer, farmer, or fisherman pursuant to Article 18-3(4) and 6 of the Enforcement Decree of the Management of Mountainous Districts Act; the relevant mountainous district is less than 30∑ with an average slope; the cultivation area is less than 30,00 square meters; and the relevant mountainous district is authorized pursuant to Article 13 of the Forest Resources Act, a report on temporary use of a mountainous district may be filed only when it is approved. According to Article 18-3(1) and the former part of Article 17(1) of the Enforcement Decree of the Mountainous Districts Management Act; Article 10(2)1 of the former Enforcement Decree of the Mountainous Districts Management Act (amended by Ordinance of the Ministry for Food, Agriculture, Forestry and Fisheries No. 100, Aug. 14, 2014); Article 10(2)1 of the former Enforcement Decree of the Mountainous Districts Management Act, which requires acceptance of a report on temporary use of a mountainous district; the same constitutes an administrative disposition (Article 16).

2) Whether a disposition to return a report on temporary use of the smuggling market is void a year.

Even if there were some defects in a disposition to return a report on temporary use of a mountainous district in the smuggling market, the effect of the said disposition is not denied on the ground of such defects, except in cases where such defects are deemed to be null and void as they are significant and apparent (see, e.g., Supreme Court Decisions 94Da28000, Nov. 11, 1994; 2006Da83802, Mar. 16, 2007; 2008Do7957, Mar. 12, 2009); and there is no circumstance to prove that there is a significant and apparent defect in the above disposition in the smuggling market (see, e.g., Supreme Court Decisions 94Da2800, Nov. 11, 1994; 2006Da83802

(iii) criminal effects of simple reporting capacity;

Furthermore, even if the report on temporary use of the mountainous district of this case is practically satisfied with all the reporting standards under the Administrative Act, if the return without the acceptance of the report is unlawful, the defendant must dispute its validity in accordance with the lawful litigation procedure and correct it, and it cannot be deemed that the act of cutting off without permission of this case is justified on the ground that such a return disposition is unlawful (see Supreme Court Decision 94Do1188, Oct. 11, 1994).

F. Sub-committee

Therefore, as long as the report on temporary use of the instant case by the reporter requiring acceptance has not been accepted, it cannot be deemed that the report on temporary use of the said case was made. Accordingly, the Defendant is not a person capable of cutting standing timber without permission pursuant to Article 36(5) of the former Forest Protection Act and Article 43(7) of the former Enforcement Decree of the Forest Protection Act. Ultimately, the Defendant cut standing timber without permission for a smuggling market pursuant to Article 36(1) of the former Forest Resources Act, and the Defendant

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.