Prosecutor and Defendant
Law Firm Barun, Attorneys Lee Ho-soo et al.
Seoul Central District Court Decision 2006 Godan5204, 2007 Godan29 decided January 26, 2007
The judgment of the court below is reversed.
Defendant shall be punished by a fine of five million won.
When the defendant fails to pay the above fine, the defendant shall be confined in the workhouse for a period calculated by converting 50,000 won into one day.
In order to order the provisional payment of an amount equivalent to the above fine.
1. Summary of grounds for appeal;
(a) A prosecutor;
In light of the fact that the reconstruction association of this case rejected the application for a provisional disposition against the victims, and that each apartment of this case was removed without permission without permission without permission without disregarding legal order even though the victims failed to comply with the request for the evacuation of the above reconstruction association, and the need for the protection of the minority, etc., the punishment of the court below (fine 10 million won) is too unreasonable.
(1) Legal principles
① Since each apartment of this case had no utility value at the time, it does not constitute the object of the crime of destruction. ② The Defendant’s act was conducted with the consent of the victims who agreed to the association’s articles of association or with the aim of preventing all union members’ losses including the victims to be expanded due to the delayed demolition of each apartment of this case. ③ The large amount of business losses due to the delay in demolition occurred, and the majority of union members demanded prompt removal, and in light of all the circumstances at the time of the occurrence of the delay in demolition, including the opposition to the removal construction during the semester, the Defendant is not liable for the crime of this case. However, the lower court convicted the Defendant of the charges of this case. In so doing, the lower court erred by misapprehending the legal doctrine, which affected the conclusion of the judgment.
(2) Unreasonable sentencing
In light of the motive of the victims who oppose the removal, the victims were normally involved in the registration of trust, the sale of trust, the agreement of sale in lots, and the drawing of lots, etc., the reconstruction project of this case was implemented through a relatively legitimate resolution procedure, and the progress of prompt reconstruction project is consistent with the interests of the majority of the members, etc., it is unfair that the lower court’s punishment (fine 10 million won) is too unreasonable.
A. Ex officio determination
Before determining each of the above arguments of the defendant, the court below found the defendant guilty of the facts charged in this case by finding that the defendant was deemed to have led to a confession of all of the facts charged in this case, and decided and notified that he should be tried through a simplified trial procedure. After completing the examination of evidence in accordance with the method prescribed in Article 297-2 of the Criminal Procedure Act, the court below recognized the admissibility of the evidence specified in the judgment below in accordance with Article
However, according to the records, although the defendant made a statement to the effect that all the facts charged are admitted when the prosecutor examines the facts charged of this case, the defendant could not be deemed to have led to the denial of the establishment of the crime by asserting emergency evacuation, etc. through his defense counsel and the last statement, and therefore, the facts charged of this case cannot be deemed to have been led to a confession of the facts charged. Therefore, the remaining evidence, other than the statement made by the defendant in the original court, among the evidences presented by the court below, cannot be deemed as evidence for conviction of the facts charged of this case, unless the admissibility of evidence is granted through legitimate evidence investigation pursuant to the general procedure, not through a simple trial procedure, but through a legitimate procedure. However, the court below found the defendant guilty of all the facts charged of this case without going through such procedure. Accordingly, the court below erred by misapprehending the legal principles on a simple trial procedure or by finding the defendant guilty of the facts charged of this case without evidence in violation of Article 307 of the Criminal Procedure Act.
However, the judgment of the court below found the defendant guilty of the facts charged of this case. The defendant's argument of misunderstanding legal principles in the above grounds of appeal is still subject to the judgment of party members to the extent that the above judgment of the court below is disputed. Thus, the judgment of the court below
(b) basic facts;
In light of the following evidence, 20. The above 20-1 and 20-7 members of the 20-1 residential complex reconstruction association (hereinafter referred to as "the reconstruction association of this case") completed the above 20-6 residential complex reconstruction project, 20-1 residential complex and commercial building (the 1,720-type 1,230 residential building) and 4-6 commercial building (the 25-type 490 residential building and 18-type 1,230 residential building) on the ground that the 20-6 residential complex and 4-6 residential building's relocation and reconstruction project had been registered as 9-6 residential building's relocation and reconstruction project, and the 20-6 residential building's relocation and reconstruction project's relocation and reconstruction project's relocation and reconstruction project's relocation and reconstruction project's relocation and reconstruction project's relocation and reconstruction project's relocation and disposal plan's relocation and reconstruction project's relocation and disposal plan's relocation and disposal plan's 15-105 residential building's relocation and 25.
C. Judgment on each misapprehension of legal principles
(1) Whether the object of the crime of causing property damage is an object
Since the crime of causing property damage requires that another person's property be damaged or concealed by other means (Article 366 of the Criminal Act), the property which is the object of the crime of causing property damage should have utility or utility, and according to the above facts of recognition, the victims continued to exercise their ownership by refusing to register the trust of each apartment of this case and to refuse to carry out the registration of the trust of each apartment of this case at the time of the crime of this case, each apartment of this case is deemed to have the utility of the property at the time of the crime of causing property damage, and therefore, it shall be deemed that each apartment of this case still has the utility of the property at the time
(2) Whether illegality exists
(A) Whether the victims have consented
According to the records, the above reconstruction association's articles of association (Article 10 (1) 6, Article 35 (4), (6), and Article 38 (1) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Environments) bears the obligation to leave the relevant building within the relocation period determined and notified by the association. The victims agreed to all the above articles of association while joining the association members, and the victims agreed to apply for a new apartment building up to February 23, 2005, the above reconstruction association's trust registration was completed until May 2006, and the victims did not participate in the above reconstruction association's lot lot and lot lot around July 2006 and the sales contract around September 2006. However, Article 49 (6) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Environments only stipulates that the victims of the previous land or the building's right holder, such as the owner of the previous building, superficies, superficies, lessee, etc., can not be seen as the removal or transfer of ownership of the new building without the consent to the new land or new land.
(B) Whether an emergency evacuation or a justifiable act was committed
Although the defendant's act of reducing the removal without the victims' consent to the removal of each apartment of this case was for the benefit of all the members, the reconstruction association of this case could have achieved its purpose by the procedure of administrative execution under the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (Articles 38 and 40 of the Act on the Improvement of Urban Areas and Residential Environments), and even though the request for a provisional disposition of the reconstruction association of this case was dismissed at the court of first instance, the defendant committed the crime of this case which is clearly contrary to the result of the trial, and therefore, it cannot be deemed that the removal of this case by the defendant was an act of considerable importance to the extent that it constitutes an emergency evacuation or a justifiable act. Thus, the defendant's assertion in this part is without merit.
Furthermore, this part of the defendant's assertion is without merit, since the removal of this case was made because there is no possibility of legitimate expectation in light of the provisions of the Act on the Maintenance of Urban and Residential Environments, etc., which was pending in the appeal trial.
Therefore, without examining the defendant's assertion of unfair sentencing, the judgment of the court below is reversed ex officio pursuant to Article 364 (2) and (6) of the Criminal Procedure Act, and the following decision is rendered through pleading.
Since criminal facts against the defendant are the same as the corresponding part of the judgment of the court below, they are quoted in accordance with Article 369 of the Criminal Procedure Act.
1. Statement of the defendant in the trial;
1. The witness’s statement at the trial of Nonindicted Party 1
1. Entry in each complaint filed by Nonindicted 2, 3, 4, 5, 1, 6, 7, and 8
1. Images of each on-site photograph;
1. Article relevant to the facts constituting an offense and the selection of punishment;
Article 366 (Selection of Fine for Negligence)
1. Aggravation for concurrent crimes;
Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act
1. Detention in a workhouse;
Articles 70 and 69(2) of the Criminal Act
1. Order of provisional payment;
Article 334(1) of the Criminal Procedure Act
Judges Kim Yong-han (Presiding Judge)
- 형법 제366조
- 형법 제24조
- 형법 제37조
- 형법 제50조
- 형법 제70조