2017No5783 Violation of the Creation and Management of Forest Resources Act

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Defendant

Supreme Court Decision 2017DaMa123 Decided December 19, 2017

May 11, 2018

The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

A. Legal principles

Since the Creation and Management of Forest Resources Act (hereinafter referred to as the “Forest Resources Act”) aims to protect property rights on products cultivated or managed, bringing wild fauna and flora that are not managed in a forest may not be punished. Furthermore, the Defendant merely put the gathered mushrooms into a bank and returned to the bank, and thus does not lead to the cutting of theft.

B. Unreasonable sentencing

The punishment (fine 300,000) imposed on the defendant by the court below is too unreasonable.

2. Determination

A. Judgment on the misapprehension of legal principles

1) With regard to the assertion that self-produced products are not subject to theft, considering that the purpose of the Forest Resources Act is to contribute to the conservation of national land, the development of national economy, and the improvement of the quality of life of the people by placing a variety of functions of forests and promoting the sustainable preservation and use of forests through the development and management of forest resources (Article 1 of the Forest Resources Act). Article 73(1) of the Forest Resources Act, which is the pertinent legal framework for criminal facts, punishs “the act of cutting down the produce from forests” as “the act of cutting the produce in forests.” This provision does not include any provision that is confined to artificially cultivated and managed produce, “forest” as “the standing timber, bamboo, and their land” (Article 2 subparag. 1 of the Forest Resources Act), and considering that the standing timber and its land, regardless of whether natural or artificial, are collectively considered to fall under “forest”, it is reasonable to view that self-produced products are also subject to the above penal provision.

2) As to the assertion that larceny is an attempted larceny, it can be said that theft would take place when the possession of another person is infringed and the property is transferred to his/her own possession, namely, when he/she is under his/her control (see Supreme Court Decision 64Do577, Dec. 8, 1964). According to the evidence duly adopted and examined by the court below, the defendant can be found to have acknowledged that he/she has been under the control of the defendant's factual control that he/she continues to take ridges and put him/her in a mountain place in a mountain place. In light of the above legal principles, it seems that the defendant has already come to be stolen. Accordingly, the above argument by the defendant is without merit.

B. Determination on the assertion of unfair sentencing

The fact relevance of the crime of this case is recognized by the defendant, the damage is returned, and the degree of damage is not serious, which is favorable to the defendant.

However, even though the Defendant knew that the victim was prevented from bringing forest products through banners installed, there are no other circumstances such as the Defendant’s age, sex, environment, family relationship, motive, circumstance, means and consequence of the crime, and other circumstances revealed in the records and arguments in the instant case, including the Defendant’s age, criminal conduct, family relationship, motive and circumstance of the crime, means and consequence, the lower court’s sentence is appropriate, and there is no reason to find that the lower court’s sentencing judgment is deemed to have exceeded the reasonable limit of discretion, or that it is unreasonable to maintain it as it is.

3. Conclusion

Therefore, the defendant's appeal is groundless, and it is so decided as per Disposition by the decision to dismiss it pursuant to Article 364 (4) of the Criminal Procedure Act.

Judges Kim Jong-dae

Judges Kim Jin-tae

Judges Jinsu-syun