A. Legal principles

1) During the construction process, E Co., Ltd. (hereinafter “E”) for which the Defendant was holding office as the representative director, determined that the victim’s banner installed on the construction site pents (hereinafter “instant banner”) may be damaged for the purpose of exercising the right of retention, and provided the victim with sufficient opportunity to collect and store the instant banner. In addition, if the victim did not comply with the request, the Defendant would have to collect and store the instant banner at a separate place and then notified the victim that he would find it later. In this context, it is difficult to deem that the Defendant violated the utility of the instant banner by removing the instant banner, or that he had the intent to commit property damage at the time.

2) In light of all the circumstances such as the possibility of remedy for infringement of rights, prompt realization of rights, and delay of construction, it is reasonable to deem that the Defendant’s act is a justifiable act that does not violate the social rules and thus constitutes the illegality thereof.

B. Unreasonable sentencing

The punishment (the fine of KRW 500,000) imposed on the defendant by the court below is too unreasonable.

2. Judgment on the misapprehension of legal principles

A. The facts charged in this case

Defendant is the representative director of E, and Victim H is exercising the right of retention against Defendant Company

person is a person.

On November 2, 2015, the Defendant posted the instant banner (section 2) equivalent to KRW 400,000 at the market price of the phrase, “AF, to exercise the right of retention in the outside of the G hotel, building site,” which is located in Bupyeong-gu Incheon, the Defendant destroyed the instant banner (section 2) by ordering the security guardsJ working in that place to remove the said banner.

B. As to the argument that the defendant's act does not constitute a crime of property damage

The crime of causing property damage under Article 366 of the Criminal Act is established when a special media record, such as another person’s property, document, or electronic record, has been destroyed or concealed, or has impaired its utility by any other means. Here, where the utility is impaired by any damage or concealment or other means, it includes not only cases where the act of material destruction makes goods, etc. in a state in which it cannot be used for its original purpose, but also cases where the utility is deteriorated by temporarily making it impossible to play a specific role such as goods, etc. (see, e.g., Supreme Court Decision 2016Do9219, Nov. 1, 2016). In a case where the instant banner containing the contents of the Defendant’s provision against the Defendant is removed from the original place and stored in a separate place, the contents of the banner cannot be notified to the E and the general public, and thus it is evident that the utility value of the banner would be reduced temporarily, and as seen infra, it is difficult to view that the Defendant did not have any intention to temporarily recognize and order the utility of the banner in this case to be held.

Therefore, this part of the defendant's argument is without merit.The defendant's act constitutes a legitimate act.

1) The judgment of the court below

In full view of the evidence as stated in its reasoning, the lower court rejected Defendant’s assertion of justifiable act on the ground that it is difficult to view that the Defendant was in an urgent situation to remove the instant banner in the form of self-help without undergoing the aforementioned procedure, on the grounds that it is difficult to deem that the Defendant was in an urgent situation to remove the instant banner in the form of self-help when comprehensively considering the developments leading up to the installation and removal of the instant banner, and the nature and progress of the dispute surrounding the hotel business between the Defendant’s side and the injured party.

2) Determination of the immediate deliberation

A) Relevant legal principles

“Acts that do not contravene social norms” under Article 20 of the Criminal Act refers to acts permissible in light of the overall spirit of legal order or the social ethics or social norms surrounding the act. As such, if a certain act satisfies the requirements such as the motive or justification of the act, the reasonableness of the means or method of the act, the balance between the protected interest and the infringed interest, urgency, and supplementary nature that there is no other means or method than the act, it constitutes a justifiable act (see, e.g., Supreme Court Decision 2015Do16496, Jan. 28, 2016).

B) Facts of recognition

According to the above evidence, the following facts are acknowledged.

(1) On May 29, 2012, L Co., Ltd. (hereinafter “L”) for which the victim is working as a representative director is the executor of the business (hereinafter “instant business”) that purchased, newly constructs and sells “N” on the land of Bupyeong-gu Incheon, Incheon, and newly constructs “N” (hereinafter “N”), and “E in which the defendant was the representative director” is the Korean corporation of G Co., Ltd. operating a hotel in Japan (Evidence Nos. 104 through 108).

(2) On May 23, 2013, L entered into a loan agreement (hereinafter “the instant loan agreement”) with the K Savings Bank, the National Bank of Korea, and the IMB BB BB (hereinafter “T”) to obtain a loan necessary for the execution of the instant project within the scope not exceeding 24.7 billion won. During the process, E has jointly and severally guaranteed the obligation to complete the construction of the city and agreed to take over the obligation of the contractor and the annual principal and interest of the loan (Evidence No. 17 through No. 233 of the Evidence No. 173 of the record). On the other hand, L, on March 29, 2013, prior to receiving a loan from the lender, to obtain a loan from the lender, upon the occurrence of a cause for loss of interest under the instant loan agreement, to be notified of the transfer of the right to implement the project, to whom the lender is designated as the lender, and to whom the remaining part of the project is transferred, including the right of retention and the remaining part of the land.

(4) Around May 24, 2013, L entered into a management-type land trust agreement (Evidence No. 234 through 261 of the Evidence No. 234 of the Act) with a coconck asset trust (hereinafter “cocon asset trust”), whereby L is entrusted with the instant land (trust land), the trustee, and the trustee acquired it and constructed a G tourist hotel (trust building) and then sold the land and buildings (trust real estate) as trust property (Evidence No. 234 to 261 of the Act).

(5) Since L was unable to pay interest by June 27, 2014 while L was performing a business with a loan, it was lost the benefit of time as of June 28, 2014 under the loan agreement of this case. The lender requested that L was to dispose of trust property, such as the instant land, and pay the principal and interest of loan by disposing of it in accordance with the trust agreement (Articles 48 through 50 of the trial record, Articles 262 through 265 of the evidence record).

(6) As such, E, who jointly and severally guaranteed the completion of liability as referred to in paragraph (2) of the above, purchased the instant site and the instant project’s right to authorize the instant project from the Coco Asset Trust on August 12, 2014 (i.e., KRW 8,00,000 + KRW 5,762,015,310, and completed the registration of ownership transfer on the instant site on August 13, 2014 (Evidence 266 through 290).

(7) After completing the registration of ownership transfer for the instant building site, the victim argued to the effect that, “E shall complete the registration of ownership transfer for the instant building site and begin the possession and management of all facilities related to the instant building, it is unfair to process the benefit loss under the instant loan agreement and that E shall take over the status of the instant business entity (Evidence No. 152 of the Evidence Record). On the other hand, “E” entered into a contract with the said company on August 22, 2014 to grasp illegal possession, unauthorized installation, etc. within the instant building site through patrol (Evidence No. 292 of the Evidence Record).

(8) On September 16, 2014 and September 20, 2014, after the acquisition of the instant business by E, the victim had already installed a banner to the effect that he/she shall exercise the right of retention on the steel fence of the instant project site, but was removed. However, on April 14, 2015, he/she re-built the instant banner, and even upon the Defendant’s demand from his/her side to voluntarily remove it, he/she did not comply with it for a period of six months until it is collected in accordance with the order of removal as stated in the facts charged of the instant case (the trial record No. 59, page 8 of the evidence record).

(9) L filed an application for provisional attachment against real estate (Seoul Central District Court 2015Kadan801221) by filing a claim for provisional attachment against E (Seoul Central District Court 2015Kadan801221), and filed a claim for damages (Seoul Central District Court 2015Kahap541435), and filed a dispute over whether a banner belongs to E having taken over the instant business, and whether a banner installed (hereinafter referred to as “pents of this case”) led to a crime of causing property damage by arbitrarily removing the pents (with respect to the trial record No. 51).

C) Whether a legitimate act was established

In light of the aforementioned legal principles, the victim is not in possession of the site of this case, and the victim is deemed to have lost all rights such as the project implementation right, lien waiver and transfer angle. Thus, the victim's act of installing the banner of this case is difficult to be deemed to have been exercised with legitimate title as an act impeding the exercise of E's ownership in the site of this case and the execution of the project of this case. ② The removal of the banner of this case cannot be deemed to have caused significant damage to the victim. On the other hand, the price of the banner of this case is not only 40,000 won but also the victim did not feel the need to recover it (section 61 of the trial record). In light of the above legal principles, the victim's act of installing the banner of this case is likely to cause serious damage to E due to serious dispute at the workplace of this case. ③ Even if the defendant, who was in the position of representative director of this case, continuously caused considerable harm to E, the victim's act of installing the banner of this case can be seen as a legitimate act of civil procedure and its purpose.

Nevertheless, the court below rejected Defendant’s assertion of legitimate act and found Defendant guilty of the facts charged. The court below erred by misapprehending the legal principles as to legitimate act, thereby affecting the conclusion of the judgment. The Defendant’s assertion pointing this out

3. Conclusion

Therefore, the appeal by the defendant on the grounds of a misapprehension of legal principles is reasonable, and the judgment of the court below is reversed pursuant to Article 364 (6) of the Criminal Procedure Act without examining the remaining arguments, and the following decision is rendered again through pleading.

【Discretionary Judgment】

The facts charged of this case are as stated in Section 2-A (A) of the above Act, which constitutes a time when the facts charged of this case do not constitute a crime for the same reason as stated in Section 2-C (2) of the above Article, and thus, pursuant to the former part

The defendant shall be pronounced not guilty, and it is so decided as per Disposition.

Judges fixed-term

Judges White-dol