주거침입등
The judgment of the court below is reversed.
Defendant shall be punished by a fine of one million won.
The defendant does not pay the above fine.
1. Summary of grounds for appeal;
A. Regarding the facts charged of mistake of facts and misapprehension of legal principles, the hack pipe of the instant fence is not a property owned by the victim since the victim was not installed and the installer gave up ownership.
Since the Defendant did not recognize that the 쇠 pipe was the property owned by others, the Defendant did not have intention to do so.
B. The sentence imposed by the lower court on the grounds of unreasonable sentencing (1.5 million won of a fine) is too unreasonable.
2. Determination
A. The following circumstances acknowledged by the lower court’s judgment on the assertion of mistake of facts and misapprehension of legal principles and evidence duly adopted and investigated by the court below, namely, ① the whole owner of the victim’s house installed a pipe of the fence of this case even according to the Defendant’s assertion, so the former owner should be deemed to dispose of the said fence together with the Defendant’s disposal of the said house to the victim, and ② even at the time of the instant case, since the said fence served as a boundary, it is difficult to deem that the installer or the victim renounced the ownership, and the Defendant appears to have dolusently recognized the fact that the said fence was owned or jointly owned by another (see Article 239 of the Civil Act).
Therefore, the defendant's assertion of mistake and misapprehension of legal principles is without merit.
B. The following point of determination on the assertion of unfair sentencing is an unfavorable circumstance to the defendant.
Until the trial, no agreement has been reached with the victim.
There is a record of being sentenced to a fine once for the same crime.
On the other hand, the following facts are favorable to the defendant.
In the past, it is against the wrong recognition of the crime of intrusion on residence.
There are contingent crimes and circumstances that can be considered in the course of crimes.
The degree of damage is relatively minor.
(2).