[1] Where farmland is diverted without obtaining permission to divert farmland, the starting point of the statute of limitations shall be the starting point

[2] The case reversing the judgment of the court below which acquitted a person on the ground of the expiration of the statute of limitations in regard to the act of raising dogs in vinyls installed in farmland without obtaining permission to divert farmland

[1] According to Article 2 subparagraph 9 of the Farmland Act, farmland diversion refers to the use of farmland for purposes other than agricultural production, such as the cultivation of crops or the growth of perennial plants, or farmland improvement. Such diversion can be made in a state where it is difficult to restore the original state by substantially changing the form and quality of farmland into an outer form by cutting, raising, or suspending farmland, or by installing tangible objects, etc. that may interfere with the use of farmland, etc., or by using land for other purposes without changing the external form or form. In this case, if the alteration of the external form of land is accompanied by the alteration of the external form, the act must be completed as a so-called immediate crime completed simultaneously with the alteration of the external form of land, and the statute of limitations shall progress from the time of the completion of the crime. However, if the alteration of the external form is not accompanied by the alteration of the external form, such diversion of farmland continues to be an unlawful state, and as such, the statute of limitation shall not run until the use is terminated.

[2] The case reversing the judgment of the court below which acquitted a person on the ground that the statute of limitations has run since the act of raising a dog in a vinyl installed on farmland without obtaining permission to divert farmland does not entail changes in the external form, such as changing the form and quality of farmland, but merely uses the farmland for any other purpose, as long as the farmland continues to be used for any other purpose, the statute of limitations has run since the act of raising a dog in the farmland was merely used for the diversion of farmland, and the act has ceased

[1] Article 2 subparagraph 9 of the Farmland Act, Articles 36 (1) and 59 (2) of the Farmland Act, Article 252 (1) of the Criminal Procedure Act / [2] Articles 36 (1) and 59 (2) of the Farmland Act, Article 252 (1) of the Criminal Procedure Act

Defendant

Prosecutor

Publicity Cost

Cheongju District Court Decision 2004Ma397 decided June 21, 2004

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 1,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for a period calculated by converting 40,000 won into one day.

In order to order the provisional payment of an amount equivalent to the above fine.

1. Summary of the facts charged in this case and the judgment of the court below

The court below held that the Defendant used farmland for purposes other than agricultural production or improvement, such as cultivating crops or growing perennial plants, etc. in the above plastic house from May 18, 200 to February 18, 2004, without obtaining permission under Articles 59(2) and 36(1) of the Farmland Act, on the charges of this case where: (a) the Defendant intending to convert farmland into farmland without permission under Articles 59(2) and 36(1) of the Farmland Act is established as soon as it is difficult for the Defendant to restore the original state by changing the shape and quality of farmland to its external form; and (b) the so-called crime where farmland is converted to farmland without permission under the above Articles 59(2) and 36(1) of the same Act is established as soon as it is difficult for the Defendant to restore to the original state due to the de facto alteration of the form and quality of farmland, and (c) the statutory penalty for the above crime is a fine not exceeding three years or a fine not exceeding three years.

It can be recognized that the public prosecution of this case is the dateless in May 200, and the public prosecution of this case constitutes a case where the statute of limitations has expired because it is apparent in the record that the public prosecution of this case was instituted on March 12, 2004 after three years have passed from that time. Thus, the public prosecution of this case was acquitted by the defendant pursuant to Article 326 subparagraph 3 of the Criminal Procedure Act.

2. Summary of grounds for appeal by a prosecutor;

Since farmland diversion includes the act of changing the purpose of use as well as the act of using it for other purposes without a tangible change, it cannot specify the starting and ending point of time, and as long as the act continues to be used for other purposes, there is a continuous illegal state so long as it continues to be used for other purposes, the court below did not proceed with the statute of limitations as long as the illegal state continues, but sentenced the Defendant to acquittal by misunderstanding legal principles.

3. Determination

According to Article 2 subparagraph 9 of the Farmland Act, farmland diversion refers to the use of farmland for purposes other than agricultural production, such as the cultivation of crops or the growth of perennial plants, or the improvement of farmland. Such diversion of farmland can be made in a state where it is difficult to restore the form and quality of farmland by substantially changing the form and quality of farmland into an outer form by cutting, raising, or suspending the diversion of farmland, or by installing tangible objects, etc. that obstruct the use of farmland, etc., or by using it for other purposes without changing the form and quality of land or without changing the form. In such cases, where the alteration of external form and form of land is accompanied by the alteration of the external form and form of land, the act is completed as a so-called immediate crime that is completed simultaneously with the completion of the crime and the statute of limitations shall run from the time of the completion of the crime. However, if the alteration of external form and form is not accompanied by the continuous use of farmland for other purposes, the statute of limitations for such diversion of farmland continues.

In the instant case, the act of raising dogs in the vinyl installed by the Defendant to grow the farmland in this case from around May 12, 2000 without obtaining permission to divert farmland in this case does not entail any changes in the external form, such as changing the form and quality of the farmland in this case, but merely uses the farmland for any other purpose, and thus, the statute of limitations does not run as long as the Defendant continues to use the farmland in this case by diverting the farmland in this case for any other purpose, and the statute of limitations shall run only from February 18, 2004 after the Defendant ceased raising the farmland in this case. Meanwhile, it is apparent that the statute of limitations for three years has not run since the Defendant was instituted on March 12, 2004 and the indictment in this case was filed on March 12, 200 and the statute of limitations for three years has expired. Nevertheless, the lower court which acquitted the facts charged in this case with the completion of the statute of limitations, and it is erroneous by misapprehending the legal principles on the diversion of farmland

Therefore, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and it is again decided as follows after pleading.

Criminal facts

The Defendant did not obtain permission to divert farmland from the petitioner Gun, which was confirmed by the Farmland Management Committee, by drawing up a vinyl in the 647 cubic meters of farmland located in 570-3, Song-ri, Songbuk-gun, outside the agricultural promotion area, and raising a dog while growing crops, without obtaining permission to divert farmland from the petitioner Gun who was confirmed by the Farmland Management Committee.

From May 200 to February 18, 2004, the farmland was used for purposes other than agricultural production, such as the cultivation of crops or the cultivation of perennial plants, or the improvement of farmland by raising approximately 80 mars in the said vinyl house from May 1, 200 to February 18, 2004.

Summary of Evidence

1. Statement in the original trial by the defendant;

1. Statement of statement made by the prosecutor at a cost; and

1. Statement of the highest compliance officer’s preparation;

1. Each entry in the accusation book, public official writing, detailed statement of land to be accused, field photograph, actual survey record, land cadastre, forestry map, and written confirmation of land use plan;

Application of Statutes

1. Relevant legal provisions concerning criminal facts;

Articles 59(2) and 36(1) of the Farmland Act

1. Invitation of a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Judges Park Young-young (Presiding Judge)

Judges Park Young-young (Presiding Judge)