(영문) 수원지방법원 2017.10.13.선고 2017노293 판결

(1) A person who commits a crime under Article 16 (3) (hereinafter referred to as "the prohibition provision of this case") of the Wildlife Protection and Management Act (hereinafter referred to as the " Wildlife Protection Act") is not a "all citizens," but a person who imports or brings in globally endangered species and products processed therefrom with permission from the Minister of Environment." Thus, the defendants, not the importer or shipper of E as stated in the judgment of the court below, are not a criminal offender of the prohibition provision of this case.

② In relation to the crime of the lower judgment’s crime No. 1. A. (b)(FI. as raw materials for cosmetics, the Defendants stated that the Defendants’ use column after the revision of the approval for change of use that was received in around 2010 includes “T and other pharmaceutical materials” and “processed materials (limited to pharmaceutical materials, such as ICT)” and the use of F as raw materials for cosmetics does not deviate from the aforementioned alteration.

③ As to the charge of the lower judgment’s crime No. 1-C. (Lease for viewing), the Defendants demanded that a certain U be used for exhibition or viewing in consultation with the Ministry of Environment and U.S., and that the Ministry of Environment accepted a verbal consent on March 2015, the Defendant leased U for viewing. As such, there was justifiable reason to believe that the above lease was lawful.

2) Unreasonable sentencing

The sentence (Defendant A: a fine of KRW 1 million, Defendant B’s cooperative: a fine of KRW 500,000) imposed on the Defendants is too unreasonable.

2. Determination

1) Judgment on misconception of facts and misapprehension of legal principles

(1) Article 69(1)3 of the Wildlife Act (hereinafter “instant penal provision”), which is a penal provision corresponding to the instant penal provision, stipulates that “a person who uses globally endangered species and products processed therefrom for purposes other than the purpose of importing or bringing in, in violation of Article 16(3)” is punished only by an importer or a shipper. In addition, the instant penal provision does not limit the offender. In particular, in the case of so-called “U,” such as the instant globally endangered species, the number of persons who were imported after 36 years have elapsed since the permission of importation for re-export in 1981, or those who were acquired by transfer from U or her importer or a shipper after 36 years have passed since the permission of importation for the purpose of re-export in 1981, appears to be considerable, and Article 16(6) of the Wildlife Act provides that “a person subject to punishment shall be limited to the importer or importer’s duty to report transfer or acquisition of globally endangered species by prescribing the time of movement of breeding places, and protect and manage them individually. Therefore, the Defendants cannot be deemed to have any other reasons for the same.

(2) Determination as to the assertion that the F Sale is within the scope of the approved change of use

In light of the following circumstances acknowledged by the evidence duly adopted and investigated by the court below, i.e., that the sale of cosmetic as a drug material does not include the use of cosmetic, etc. as a drug material; ② the defendant submitted an application to the Han River basin basin environmental office around 2009 that "the change of U's use to enable the sale of 'F' to be changed to the 'the Han River basin basin basin basin basin basin environmental office'; and ② the Minister of Environment notified the head of the regional environmental office of around 2005 that he should not approve the use of 'the above application cancellation disposition cancellation lawsuit; hereinafter 'the administrative litigation of this case' to the return recipient; and the above notification is legitimate as setting the criteria for changing the use of 'T', which is a beneficial administrative act and discretionary act, and the above notification is legitimate. The defendant's act of selling 'the above return disposition following the above notification' cannot be seen as having been included in the scope of 'T-303 materials' (see, e.g., Supreme Court Decision 20100Du3333.

(3) The lower court’s determination on the assertion that the alteration of use for display and viewing was obtained the oral consent of the Ministry of Environment as to the alteration of use for the purpose of exhibition and viewing, that is, the following circumstances acknowledged by the evidence duly adopted and investigated by the lower court, namely, the Defendants asserted as above based on the fact that the Defendants obtained approval for alteration of use for display and viewing on August 31, 2015, but the approval for alteration of use was not against U.S. as stated in Article 1-C. of the Criminal Act (172 pages of the investigation record). The above facts alone are not sufficient to have a reasonable doubt that there was a verbal consent of the Ministry of Environment as to the alteration of use for the foregoing U around March 2015, and ② even if there was a verbal consent of the Ministry of Environment, this does not go against the purport that the Defendants would hinder the alteration of use in accordance with the lawful procedure, and in view of the fact that the purport of allowing the alteration of use only by oral consent is easily inferred in light of the empirical rule.

2) Determination on the assertion of unreasonable sentencing

The fact that there is no record of punishment for the same crime is favorable to the defendants.

On the other hand, even though Defendant A was aware that the use of U for import purposes, such as F sale, was illegal after having received a judgment against the administrative litigation of this case, the fact that Defendant A committed the crime of this case is disadvantageous to the Defendants.

In light of the aforementioned circumstances, the lower court sentenced Defendant A to a fine of KRW 1 million and KRW 500,000 to Defendant B’s cooperative. In full view of the matters on the conditions of sentencing and the applicable sentences, there is no circumstance that the lower court’s sentencing is deemed to have exceeded the reasonable bounds of discretion, or that it is unreasonable to maintain the original judgment as it is. In addition, the circumstances and results of the instant crime, including the circumstances after the crime, Defendant A’s age, character and conduct, environment, etc., are considered appropriate and unreasonable. Accordingly, the Defendants’ assertion is without merit.

3. Conclusion

Since the appeal by the defendants is groundless, all of them are dismissed in accordance with Article 364 (4) of the Criminal Procedure Act.