Defendant

Defendant

Materns

Law Firm Cheongp, Attorney Lee Dong-hwan

Changwon District Court Decision 2010 Gowon103, 2010 Gowon decided November 3, 2010 (each of them), 167, 196 (each of them), decided November 3, 2010

The part of the judgment of the court below against the defendant is reversed.

Defendant shall be punished by a fine of KRW 10 million.

When the defendant fails to pay the above fine, the defendant shall be confined in the workhouse for a period calculated by converting 50,000 won into one day.

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

Of the facts charged in the instant case, it is not guilty that the Defendant violated the Mountainous Districts Management Act (129-2), which is located in the area of 129-2, Gyeongcheon-gun, Chungcheongnam-do.

1. Summary of grounds for appeal;

A. misunderstanding of facts and misapprehension of legal principles

(1) Criminal facts No. 1 of the judgment of the court below

The defendant, around September 2009, extracted 9 pine trees from 21, Gyeongcheon-gun, Gyeongnam-gun at the end of 2009, and restored to its original state without completing the extraction activity. As such, the defendant's act of excavating pine trees does not reach the number of trees, and there is no provision for punishment for attempted crimes under Article 74 of the Creation and Management of Forest Resources Act (hereinafter "Forest Resources Act"), this part of the facts charged is deemed not guilty because the elements of the crime are not satisfied, and even though the defendant revoked the permission of extracting pine trees from 21, 190 and did not know the fact that it was unauthorized, the court below found the defendant guilty of this part of the facts charged on the premise that the defendant was aware of the fact that he was unauthorized.

(2) Criminal facts of the judgment below

(A) Paragraph (a) of this Article

The Defendant obtained permission to excavate trees of 129-2 YYYYYYYYYYYYYY, and in light of the provisions of Article 36 of the Forest Resources Act and Article 15 of the Management of Mountainous Districts Act, if the above extraction permission was granted, it shall be deemed that the report on the construction of the roads and the construction of the roads necessary for felling standing timber, etc. was filed. Therefore, the lower court erred by misapprehending the legal doctrine, which convicted the Defendant of this part of the facts charged on the premise that the establishment of the roads, etc. requires permission to divert the mountainous district.

(b) part of subsection (b).

The Defendant obtained permission for the extraction of pine trees of 20-11 ri. ri.g., the same area adjacent to 21 ri. ri. ri.g., Simcheon-gun, Gyeongcheon-gun. In order to install a cryp, etc. according to the permission for the extraction, the Defendant fell into a forest of 422 square meters in total, including some forests, etc. within 21 ri. ri. ri. 21 ri.g., in order to install a cryp, etc. according to the permission for the extraction, and therefore, the lower court convicted

C. The assertion of unfair sentencing

The punishment sentenced by the court below (eight months of imprisonment) is too unreasonable in light of various circumstances, which constitute the sentencing.

2. Determination

A. As to the assertion of mistake of fact

(1) Criminal facts No. 1 of the judgment of the court below

(A) Whether a punishment provision constitutes a constituent element

Article 74(1)3 of the Creation and Management of Forest Resources Act (hereinafter “Forest Act”) provides that “a person who has cut standing timber, etc. without permission from the Mayor, etc. in violation of Article 36(1)” shall be punished. Article 36(1) provides that “a person who intends to thin standing timber, extract or gather forest products within a forest (hereinafter referred to as “felling, etc.”) shall obtain permission from the Mayor, etc.” In addition, although there is no definition of terms for “felling, etc.” including the extraction of forest products under the Forestry Act, the term “felling, etc.” is defined under Article 74(1)3 of the Forest Resources Creation and Management Act, “a person who has cut standing timber, etc. without permission from the mayor, etc.” (Article 550 of the Rules of the Forestry Administration).”

According to the evidence duly admitted and examined by the court below, the defendant's act constitutes extraction of trees under Article 74 (1) 3 and Article 36 (1) of the Forestry Act, since the defendant's act constitutes extraction of trees in light of the definition of extraction of trees, Article 36 of the Forestry Act, which provides for gathering together with extraction of forest products, etc. under the Guidelines for Mining Trees, and thus, it constitutes an act under Article 74 (1) 3 and Article 36 (1) of the Forestry Act. Thus, the defendant's argument disputing this point is without merit.

(B) Whether the Defendant knew of the fact that there was an unauthorized extraction of pine trees No. 21 located in mountain,

(1) According to the evidence duly admitted and examined by the court below, Co-defendant 1 was permitted to excavate pine trees located in 21, 190 Madul 21, 100 Madul 21 (hereinafter “Madul 21”), but the above extraction permission was cancelled on the ground that it is not clear that the land No. 21 Madul 21 is not ownership in the copy of the register, ② the defendant extracted pine No. 9 Madul 21 around September 2009, and Co-defendant 1 of the court below knew that it was not permitted to extract pine trees located in 21,000 Madul 21,000 Madul 21,000 Madul 21,000 Madul 9,000 Madul 21,000 Madul 9,000 Madul 1,000 Madul 21,001.

(2) 2-A of the facts constituting the crime in the judgment below

(A) Summary of the facts charged

The Defendant did not obtain permission from the competent authority for mountainous district conversion, from May 2009 to July 20 of the same year, destroyed a forest equivalent to 570m2 square meters by extracting pine trees from 129-2 in Yellow-do, Chungcheongnam-do, Chungcheongnam-do, Yellow-do, and installing an access road using a cutter, and thereby converting the mountainous district.

(B) Judgment of the court below

In light of the evidence duly adopted and examined by the court below, the following facts are acknowledged: (i) Nonindicted Party 1 obtained permission to excavate the pine trees 10g from Gohap-gun on May 15, 2009 from Gohap-gun on the 129-2, Gyeongcheon-gun, Gyeongcheon-gun, Gyeongcheon-gun; (ii) the Defendant paid KRW 8.5 million to Nonindicted Party 2, who was assigned the right to extract the pine trees from Nonindicted Party 1, and extracted the said pine trees from May 2009 to July 2, 2009; and (iii) the Defendant installed access roads necessary to extract the said pine trees using the digging machine around that time.

On the other hand, Article 36 (1) of the former Forest Resources Act (Act No. 9313, Dec. 31, 2008) provides that "a person who intends to cut standing timber, extract or gather forest products (excluding stone and earth and sand under subparagraphs 3 and 4 of Article 2 of the Mountainous Districts Management Act; hereafter the same shall apply in this Article) within a forest (excluding a forest for seed collection, etc. under Article 19 and a reserved forest under Article 43; hereafter the same shall apply in this Article) (hereinafter referred to as "standing timber felling, etc.") shall obtain permission from the head of a Si/Gun/Gu or the head of a regional forest office, as prescribed by Ordinance of the Ministry for Food, Agriculture, Forestry and Fisheries, and Article 36 (1) of the same Act shall be deemed to have obtained permission to cut standing timber, etc. or to have obtained permission to divert standing timber, etc., and a person who intends to establish a non-permanent mountainous district for the purpose of installation of a mountainous district shall file a separate report on the diversion of the mountainous district for the same purpose."

Therefore, the Defendant’s act of installing access roads necessary for the extraction of pine trees, as stated in this part of the facts charged, constitutes a case where it does not constitute a crime since it does not meet the elements of Article 53 subparag. 1 and Article 14(1) of the Management of Mountainous Districts Act, and thus, constitutes a case where permission for conversion of mountainous districts is required to establish the above access roads, and thus, the lower court found the Defendant guilty of this part of the facts charged by misapprehending the legal doctrine

(3) Criminal facts No. 2-b. of the judgment of the court below

(A) Summary of the facts charged

The Defendant did not obtain permission from the competent authority for mountainous district conversion, and, on September 2009, around 21, 2009, extracted pine trees from 21, Yancheon-gun, Chungcheongnam-gun, Chungcheongnam-do, and opened an access road by using refrackers and figures, and damaged a forest equivalent to 422m2m2 in a manner of hedging the forest.

(B) Judgment of the court below

(1) In light of the fact that the defendant recognizes the objective attitude of acts in this part of the facts charged from an investigative agency to this court, and the fact that Article 14 (1) of the Management of Mountainous Districts Act requires to obtain permission from the Minister of the Korea Forest Service in principle for conversion of a mountainous district by stipulating that "any person who intends to convert a mountainous district shall obtain permission from the Minister of the Korea Forest Service, as prescribed by Presidential Decree" but Article 15 (1) of the same Act provides that "any person who intends to convert a mountainous district for any of the following purposes shall report to the Minister of the Korea Forest Service as prescribed by Presidential Decree, notwithstanding Article 14 (1) of the same Act" that "any person who intends to convert a mountainous district for any of the following purposes shall report to the Minister of the Korea Forest Service, as prescribed by Presidential Decree, if he exceptionally reports the use falling under any of the subparagraphs of Article 15 (1) of the same Act."

However, according to this part of the facts charged, the health stand for the part of the judgment below as to the "establishment of access roads" and the evidence duly adopted and examined by the court below. (1) If Co-defendant 1, around July 13, 2008, Gyeongcheon-gun, Gyeongcheon-gun, Gyeongcheon-gun, it is permitted to extract pine trees located in 20-11 (hereinafter "san 20-11"), and it is permitted to change the period of permission of extraction around August 17 of the same year. (2) The defendant and co-defendant 1 of the judgment of the court below opened 10,000,000 won for 10,000 won for 20,000 won for 20,000 won for 10,000 won for 20,000 won for 30,000,000 won for 20,000 won for 20,000 won for 20,00.

3. Conclusion

Therefore, since the defendant's assertion of mistake of facts, etc. is well-grounded as seen above, without examining the defendant's assertion of unfair sentencing, the part of the judgment of the court below against the defendant is reversed and it is again decided as follows.

The summary of the facts constituting an offense and the evidence thereof recognized by this court is as follows: (a) and (b) of Article 2-1 of the facts constituting an offense in the judgment below; and (c) deleted the part “establishment of entry roads”; and (d)” of Article 2-1 of the facts constituting an offense in the judgment below; and (e) alters “422 square meters” to “42 square meters in area not in size (422 square meters-entry roads);

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 74(1)3 and 36(1) of the Creation and Management of Forest Resources Act, Article 30 (Selection of Fine) of the Criminal Act, Article 53 Subparag. 1, and Article 14(1) (Selection of Fine) of the Management of Mountainous Districts Act, Articles 74(1)3 and 36(1) (Selection of Fine) of the Creation and Management of Forest Resources Act

1. Aggravation for concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

1. Of the facts charged in the instant case, the summary of the violation of the Mountainous Districts Management Act as to No. 129-2 of the 129-2 of the Gyeongcheon-gun, the defendant is identical to the description in Article 2-A. 2(2)(a) of the judgment. As examined in the judgment in the (b), this part of the facts charged falls under a case that does not constitute a crime, and thus, the defendant is acquitted pursuant to the former part of Article 325 of

2. Of the facts charged in the instant case, inasmuch as a violation of the Management of Mountainous Districts Act on the land No. 21 in Gyeongcheon-gun, the defendant was found guilty of violating the Mountainous Districts Management Act on the land No. 21 in Gyeongcheon-gun, the part should be found not guilty pursuant to the former part of Article 325 of the Criminal Procedure Act, since it constitutes a case that does not constitute a crime as seen in Article 2-A. 3(2) of the judgment, the part must be found not guilty pursuant to the former part of Article 325 of

Judges Han Hong Man (Presiding Judge) Kim Jong-young