Supreme Court: "Unauthorized Construction → Indictment Can Be Amended to Unreported Temporary Structure Erection"

"Administrative Litigation and Criminal Litigation Should View 'Identity' Differently"

[Asia Economy Reporter Choi Seok-jin, Legal Affairs Specialist] The Supreme Court has ruled that it is possible to change the indictment from charging a suspect who illegally installed containers with unauthorized construction to charging them with constructing a temporary building without notification.

The Supreme Court's 2nd Division (Presiding Justice Min Yoo-sook) announced on the 20th that it upheld the lower court's ruling sentencing Mr. A, who was indicted for violating the Building Act, to a fine of 1 million KRW with a one-year probation.

The court explained the reason for dismissing the appeal, stating, "There is no error in the lower court's judgment regarding the legal principles of changing the indictment."

Mr. A was indicted for violating Article 11, Paragraph 1 of the Building Act for stacking about 1,000 containers measuring 6m in length and 2.45m in width in two or three layers and arranging them systematically on a 10,948㎡ site without obtaining permission from the Hanam City Mayor in April 2019, for use as temporary storage or temporary office.

Article 11 (Building Permission), Paragraph 1 of the Building Act stipulates that "a person who intends to construct or substantially repair a building must obtain permission from the Special Self-Governing City Mayor, Special Self-Governing Province Governor, or the Mayor, County Governor, or District Chief."

However, after filing the indictment, the prosecutor applied for and obtained court approval to change the indictment from "constructing a building without obtaining building permission" to "constructing a temporary building without reporting the construction of the temporary building," changing the applicable law to a violation of Article 20, Paragraph 3 of the Building Act.

Article 20 (Temporary Buildings), Paragraph 1 of the Building Act requires that "a person who intends to construct a temporary building in urban or military planning facilities or planned sites must obtain permission from the Special Self-Governing City Mayor, Special Self-Governing Province Governor, or the Mayor, County Governor, or District Chief," establishing the obligation to obtain permission when constructing temporary buildings.

Paragraph 3 of the same article states, "Notwithstanding Paragraph 1, a person who intends to construct a temporary building for purposes such as disaster recovery, entertainment, exhibitions, or construction use, as prescribed by Presidential Decree, must notify the Special Self-Governing City Mayor, Special Self-Governing Province Governor, or the Mayor, County Governor, or District Chief according to the retention period, installation standards, and procedures prescribed by Presidential Decree before commencing construction," establishing the obligation to report the construction of temporary buildings.

Violation of the reporting obligation under Article 20, Paragraph 3 of the Building Act is punishable by a fine of up to 50 million KRW under Article 111 (Penalties) of the same law.

The trial focused on whether the prosecutor's change of indictment was lawful and whether Mr. A's subsequent report of the construction of the temporary building, which was not accepted by the administrative agency, could be considered to have resolved the illegal status.

Regarding the defense's claim that "the prosecutor's application for permission to change the indictment is illegal as it exceeds the scope where the identity of the facts charged is recognized," the first trial court stated, "The original charge was that the defendant constructed without obtaining building permission, and the changed charge is that the defendant constructed a temporary building without reporting it. Both concern the defendant constructing or erecting the same (temporary) building, differing only in the legal evaluation, and thus the fundamental facts are recognized as identical," and rejected the claim.

Meanwhile, Mr. A received an administrative order for correction and warning from the administrative agency in May 2019 and filed a report for the construction of the temporary building in June of the same year. However, since the administrative agency did not accept the report, he filed an administrative lawsuit seeking cancellation of the non-acceptance decision.

In the trial, Mr. A argued that if the administrative agency's non-acceptance decision was found illegal in the administrative lawsuit, the illegal status would be resolved, and the violation of the Building Act could not be established.

However, the court rejected Mr. A's argument, stating, "Even if the defendant's claim that the administrative agency's non-acceptance decision regarding the report of the temporary building construction is illegal is accepted, this is merely a subsequent circumstance occurring after the defendant constructed the temporary building without reporting it in mid-April 2019, and it is difficult to see that it affects the establishment of the violation of the Building Act."

Ultimately, the first trial court found Mr. A guilty of violating Article 20, Paragraph 3 of the Building Act and sentenced him to a fine of 2 million KRW.

In the second trial, which proceeded due to Mr. A's appeal, the legality of the indictment change was again an issue.

In particular, after the first trial's guilty verdict, in the administrative lawsuit filed by Mr. A, a ruling was made stating that "'the grounds for disposition that the container constitutes a building and violates Article 11, Paragraph 1 of the Building Act' and 'the grounds for disposition that the container constitutes a temporary building and violates Article 20, Paragraph 3 of the Building Act' cannot be considered to have the same underlying social facts, and thus additional or changed grounds for disposition are not permitted." Based on this, Mr. A claimed that the indictment change was illegal.

However, the second trial court also rejected Mr. A's claim, reasoning that administrative lawsuits and criminal lawsuits should be viewed differently.

The court stated, "Since an administrative appeal seeking cancellation of an administrative disposition and a criminal lawsuit differ in structure and legal principles, the identity required for additional or changed grounds for disposition and for changing the indictment cannot be considered completely identical."

It continued, "In this case, the original and changed charges are based on the same fundamental fact that 'the defendant constructed or erected the container in question,' and due to normative evaluation, they are closely related and mutually exclusive. Therefore, the identity of the facts charged required by Article 298, Paragraph 1 of the Criminal Procedure Act is recognized," concluding that "the claim of legal error is without merit."

However, the second trial court accepted Mr. A's claim of excessive sentencing, citing reasons such as ▲ Mr. A generally acknowledging the facts ▲ the illegal status being resolved retrospectively by reporting the construction of the temporary building for the container ▲ and no prior record of punishment for violating the Building Act, reducing the sentence to a fine of 1 million KRW with a one-year probation.

The Supreme Court also agreed that the second trial court's judgment was correct.

This content was produced with the assistance of AI translation services.