Defendant

Defendant

Original text

Law Firm Shin, Attorneys Seo Sung-sung et al.

Jeonju District Court Decision 2005Ra172 delivered on July 7, 2005

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

A defendant shall be punished by imprisonment for six months.

The twenty-seven days of detention before the pronouncement of the judgment below shall be included in the above sentence.

However, the execution of the above punishment shall be suspended for two years from the date this judgment became final and conclusive.

The defendant shall be subject to probation and shall be ordered to provide community service for 80 hours.

Of the facts charged in the instant case, the Defendant is not guilty of violating the State Property Act due to the use of state-owned land located in ancient-ri (number 1, 2 omitted) in the Taecheon-ri (number 1, 2 omitted) between Jung-gu and Jung-gu from January 9, 2005 to April 11, 2005.

1. Summary of grounds for appeal and ex officio determination of the defendant;

The summary of the grounds for appeal by the defendant is that the sentence of the court below is too unreasonable.

Before determining the Defendant’s grounds for appeal, we examine ex officio the violation of the State Property Act among the facts charged in the instant case.

Since it is apparent in the text of law that the objects of use and profit-making subject to criminal punishment under Articles 58 and 5(1) of the State Property Act are limited to "administrative property" and "Preservation Property" among the State property, the use and profit-making activities of "miscellaneous property" shall not be subject to criminal punishment.

The summary of the facts charged as to the violation of the provisions of paragraph (3) of Article 2 of the facts constituting the crime of the judgment below is difficult to recognize that the defendant used and profit from the above state-owned land as the state-owned property without justifiable grounds, and it is difficult for the defendant to use or profit from the above state-owned property as administrative property without any justifiable reasons, and it is hard to recognize that the above state-owned property falls under the category of the above miscellaneous property as the above miscellaneous property or the above miscellaneous property (number 3 omitted) site of ancient-ri (number 3 omitted), 2, 544 square meters as the river site or the above miscellaneous property (number 40,000 square meters as the farmland lot number) and the farmland in the same Ri (number 2 omitted) as the farmland in the same Ri and 419 square meters as the farmland in the same Ri, and there is no other evidence to recognize that the above miscellaneous property falls under the category of 4,000 square meters as the above miscellaneous property or the above miscellaneous property.

Therefore, the judgment of the court below that found the defendant not guilty on the ground that the violation of the State Property Act of paragraphs (1) and (4) of Article 2 of the judgment of the court below constitutes a case where there is no proof of crime, and thus, the judgment of the court below is erroneous by misunderstanding the facts and affecting the judgment,

2. Conclusion

Therefore, the judgment of the court below is reversed ex officio pursuant to Article 364(2) and (6) of the Criminal Procedure Act without examining the grounds for appeal by the defendant, and it is again decided as follows.

The Defendant is the field supervisor of the non-indicted 1 limited liability company. The Defendant extracted aggregate with the permission to extract aggregate for the farmland of 43,889 square meters on 22 lots, including Gocheon-ri (number 6 omitted), from December 19, 2004 to April 30, 2005, in collusion with co-defendant 4, who is the person in charge of the financial management of the non-indicted 1 limited liability company, the co-defendant 1, and the representative director;

1. A person who has obtained the permission to extract aggregate shall comply with the terms and conditions of the permission.

From January 9, 2005 to April 11, 2005, aggregate of 3,200 cubic meters in total from 1,600 cubic meters from each of the terms and conditions of permission that should be at intervals of not less than 10 meters from the agricultural waterways, as well as from each of the agricultural waterways located in the above Gocheon-ri (number 7,8 omitted); and aggregate of 3,200 cubic meters in 3,200 cubic meters from each of the agricultural ditches;

2.Without permission from a regular Eup market:

A. Extraction aggregate from 4,070 cubic meters in cubic meters from 814 square meters in the area of the same Ri (number 9 omitted) located in the same time as the preceding paragraph;

B. Extracting aggregate in the aggregate of 3,040 cubic meters in 189 square meters from a ditch located in the same Ri (number 1 omitted), 189 square meters in the same Ri (number 2 omitted), and 2,095 square meters in the farmland located in the same Ri (number 2 omitted), from a 3,040 cubic meters in the aggregate;

3.Without obtaining permission to temporarily use from the regular Eup market for other purposes:

The aggregate collected on the aggregate of 1,217 square meters in the same Ri (number 6 omitted) located in the same Ri (number 6 omitted), 57 square meters in the same Ri (number 7 omitted), 1,994 square meters in the same Ri (number 7 omitted), shall be filled, used as a means of transportation for another purpose, and the farmland shall be used as a temporary use for another purpose;

4.Without obtaining permission of occupation from a regular Eup market:

A. From February 2, 2005 to April 11, 2005, a river site is occupied by installing a container, etc. on a river site of 2,544 square meters located in the same Ri (number 3 omitted), between the Habman and the Habman from February 1, 2005;

B. At the same time as in the preceding paragraph, aggregate collected in the aggregate of 84 square meters in a river site located in the same Ri (number 4 omitted), 7,493 square meters in a river site located in the same Ri (number 5 omitted), and occupied the river site by means of transportation.

1. Each statement corresponding thereto made by the defendant in the original judgment and the trial court;

1. The statement that Co-defendant in the court below's decision corresponds to this.

1. Each protocol of interrogation of Nonindicted 4 and 2 prepared by the assistant judicial police officer, containing statements corresponding thereto;

1. Each statement of Nonindicted 3 and 5 prepared by the assistant judicial police officer, which correspond to this;

1. Accusation against the violator of the Aggregate Extraction Act (including each accompanying document);

1. A criminal investigation report (a accompanying report, such as an aggregate extraction permission drawing and drawings);

1. Each site photograph and drawings;

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

Article 49 Subparagraph 6 of the Aggregate Extraction Act (amended by Act No. 7307 of Dec. 31, 2004), Article 26(1) of the Criminal Act, Article 30 of the Criminal Act (the point of violation of conditions for permission), Article 49 Subparag. 3, Article 22(1) of the aforementioned Aggregate Extraction Act, Article 30 of the Criminal Act (the point of violation of conditions for permission), Article 60 Subparag. 2, Article 38(1)2 of the Farmland Act, Article 30 of the Criminal Act (the point of temporary use for other purposes without permission), Article 30 of the Criminal Act (the point of temporary use for other purposes), Article 85 Subparag. 4, and Article 33(1)2 of the River Act, Article 30 of the Criminal Act (the point of occupation and use of rivers without permission) and each

1. Aggravation of concurrent crimes;

Article 37 (Aggravation of Concurrent Punishment for Crimes of Violation of Farmland Act with Maximum Punishment)

1. The inclusion of detention days before sentencing of the judgment below

Article 57 of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act (Consideration of Circumstances Considered as Grounds for Sentencing below)

1. Probation and community service order;

Article 62-2 (1) of the Criminal Act, Article 59 of the Probation, etc. Act

Although the Defendant had been prior to being notified of a summary order of KRW 1.5 million due to the violation of the Aggregate Extraction Act in the Jeonju District Court’s Support on July 30, 2001, the Defendant again committed the instant crime as a substantial operator of Nonindicted Company 1, even though he was found to have committed the instant crime as a substantial operator of the said Nonindicted Company 1, the Defendant shall be sentenced to punishment as per the Disposition, taking into account the following circumstances, including the fact that his mistake is divided and most of

The summary of each violation of the State Property Act among the facts charged in the instant case is the same as mentioned above. This is a case where there is no proof of each crime as seen in the judgment on the grounds for appeal, and thus, the defendant should be acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, the fact of violation of the State Property Act of Article 4 of the facts charged is a ground for finding the defendant guilty of violation of the State Property Act of each River Act in relation to mutual competition. Thus, the judgment of

Judges Kim Jong-man (Presiding Judge)