판례평석 : 농지법상 농지전용죄와 범죄의 성격

농지전용죄의 범죄 성격에 관한 판례와 학설의 쟁점을 검토한다.

The Supreme Court has grasped that the character of the diversion of farmland is delit instantane when restoration is impossible. The Court did not judge specifically on the character of farmland crime when restoration was possible. In this case, the major opinion decides that the character of latter is Dauerdelikt. However, the discrete opinion insists that the character of the diversion of farmland is Dauerdelikt unitarily. The former Act provided that ``alteration of land shape and quality`` is as one of the behavior to divert agricultural land from its use, whereas the existing law does not stipulate the shape of diverting farmland to other purposes.

The reason for this revision is not clarified. However, we can refer that the Supreme Court has handled ``alteration of land shape and quality`` of one as an example because the Court has still interpreted identically as in the past. Then, it doesn`t mean that the character of diversion crime changes substantially. In addition to, discrete opinion considers that the specific character of Dauerdelikt is the continuance of illegal state. This opinion is not accurate because the continuance of illegal state exists in not only Dauerdelikt, but also Zustandsdelikt unless the crime doesn`t be completed.

According to the fact of this case, C who is the disinterested person leveled and readjusted the ground, so the land was made the condition where restoration is impossible. Even if we take the major opinion, delit instantane as restoration of farmland is not possible becomes consummation, the agricultural land could not exist at that time when the accused uses the land. Then, it can be said to be the logical conclusion that the act of the accused does not constitute the diversion crime of farmland.